REMARKS OF Professor Henry Abraham
Robert H. Jackson Center
Jamestown, New York
March 18, 2003
___________________________________________
It is a distinct honor and a pleasure to have been invited by Mr. Peterson
to visit the Robert H. Jackson Center and to venture some thoughts
about his place in the legal and judicial process in our constitutional constellation.
Your Center and its supporters are to be commended highly for taking such
admirable steps to celebrate New York’s famed country lawyer, who rose
from the latter position to the highest tribunal in our land, with a dramatic
and traumatic interval as his nation’s chief prosecutor at the Nuremberg
War Crimes trials in 1945-46. There are but few such centers honoring justices
of the U.S. Supreme Court! Most of you, I daresay, probably know a good deal
more than I about “America’s Advocate’s” background
and life in this area that he loved. I shall try to describe significant aspects
of the niche he carved out so faithfully and devotedly in serving our country
during his thirteen years on the Supreme Court of the United States between
his appointment by President Franklin D. Roosevelt in 1941 and his untimely
death on October 9, 1954, not long after his participation in the Court’s
seminal May 17 decision in Brown v. Board of Education, unanimously declaring
compulsory segregation in the public schools to be a violation of the Constitution’s
Fourteenth Amendment’s equal protection of the laws clause.
I.
Justice Brandeis once said that, “Jackson should be Solicitor General
for life.” This short pithy statement, made before Robert H. Jackson
left that post, aptly describes the esteem and respect which he commanded,
while occupying the second highest legal position in the national government
– that of Solicitor General. While it is true that Jackson had not had
any judicial experience prior to his Court appointment in 1941, few men possessed
such an extensive background in the practice of public and private law. From
1913 on, when he passed the New York State bar examination – without
completing law school, which he found utterly boring – until his appointment
as Attorney General in 1940, Jackson did not specialize in any particular
aspect of law. He chose instead to participate in a myriad of diverse, legal
proceedings.
While building up a lucrative private practice here in Jamestown, New York,
Jackson became active in New York State Democratic politics. By the beginning
of the 1930s, he was an influential figure, who had begun his lengthy relationship
with the then governor of New York, Franklin D. Roosevelt. In 1932, Jackson
supported the popular New York governor at the Democratic National Convention,
and following Roosevelt’s nomination, campaigned on behalf of the Democratic
ticket throughout his home state. After the election, Roosevelt advisors urged
Jackson to accept a government position with the new Administration in Washington.
Although he chose not to do so immediately, he became well known as a supporter
of its many reform and recovery measures.
By 1934, Jackson had changed his mind. At the urging of a number of prominent
administration officials, he accepted the post of General Counsel of the Bureau
of Internal Revenue, his first official New Deal assignment. From that time
on, Jackson was to advise the President in various aspects of pending and
completed federal legislation. His ringing public defense of the New Deal
tax program brought him close to the heart of the New Deal philosophy. Subsequently,
Jackson was named to head the government’s Anti-Trust Division of the
Justice Department as an assistant attorney general.
During the riveting 1936-1937 “Court-packing” Supreme Court battle,
Jackson clearly allied himself with the side of the Administration –
though I am convinced that he would have not embraced it had he been on the
Court. His strong spirit, coupled with his brilliant oratory and dedicated
service led Walter Lippmann to state that
Of the younger men who have come to Washington under President Roosevelt, the Assistant Attorney General, Robert H. Jackson, is surely one of the ablest and most engaging…here is a man who has knowledge, resourcefulness, ardor for his cause.
When Solicitor General Stanley Reed was appointed as an
associate justice of the Supreme Court in 1938, the President went directly
to Jackson to fill Reed’s former position. (Incidentally, Reed and Jackson
were two of the last three justices never to have completed law school. Jimmy
Byrnes was the third.) The Assistant Attorney General’s legal and administrative
experience, talents, and ideological affinity with the philosophy of the New
Deal were second to none.
As Solicitor General, Robert Jackson enhanced his already considerable reputation
and record, and when FDR sent a reluctant Attorney General Frank Murphy to
what Holmes was fond of calling “Mount Olympus” to replace the
deceased Pierce Butler, one of the two remaining ultraconservatives on the
Court, he appointed Jackson as Reed’s successor as the government’s
first lawyer. Murphy, ex-mayor of Detroit and governor of both the Philippines
and Michigan, had not been a happy camper as Attorney General. He was neither
an interested nor a conscientious administrator; he paid little heed to the
modus operandus of his department; he placed heavy emphasis on antitrust litigation,
while neglecting such crucial areas as internal revenue; and like most attorney
generals before him, he did not get along well – or not at all –
with the powerful head of the FBI, J. Edgar Hoover. In view of Frank Murphy’s
other qualification, and his abiding commitment to civil rights and liberties,
FDR quite conceivably decided to expedite his promotion, and to give the job
to the man who was supposed to get it in the first place, Solicitor General
Robert H. Jackson: “Bob, I suppose you know that you’re to come
into this office,” Murphy had told Jackson on one occasion, adding:
“I am here only temporarily.”
On June 2, 1941, the great Charles Evans Hughes, in his eightieth year, advised
FDR of his intention to retire from the chief justiceship and the Court on
July 1. He had served admirably in the center chair (and, as an associated
justice from 1910-1916) during eleven difficult years. Roosevelt, with already
five of his appointees on the Court, and the sixth one certain to be approved
by the heavily Democratic Senate, was in no hurry to find a successor, but
Hughes and his colleagues implored him not to delay, and the now third term
resident acquiesced. It was widely, and correctly, assumed that his choice
lay between two eminent lawyers. Associate Justice Harlan F. Stone, the only
Republican then on the Court, and Attorney General Robert H. Jackson, both
from the Empire State.
FDR’s heart was clearly with fellow-Democrat Jackson, a New Deal loyalist
of long standing, who had fought alongside him all the way, both philosophically
and personally. Moreover, he had more than once mentioned the chief justiceship
to Jackson, who had made clear to his president that he wanted the position
very much. Still, FDR hesitated – being acutely aware that a professional
groundswell was about to arise for Stone. He called Hughes to the White House
to discuss his successor; the retiring chief justice immediately volunteered
that “Stone’s record gave him first claim on the honor.”
Hughes also approved Jackson’s candidacy but stuck to his preference,
based on Stone’s judicial performance. Roosevelt later conferred with
Justice Frankfurter and asked him point-blank which of the two men he would
prefer as chief justice. Wishing FDR had not asked that question, Frankfurter
– never a loss for words – replied:
On personal grounds I’d prefer Bob. While I’ve known Stone
longer and our relations are excellent and happy, I feel closer friendship
with Bob. But from the national interest I am bound to say that there is no
reason for preferring Bob to Stone – quite the contrary. Stone is senior
and qualified professionally to be C.J. But for me the decisive consideration,
considering the fact that Stone is qualified, is that Bob is of your personal
and political family, as it were, while Stone is a Republican…{W}hen
war does come, the country should feel you are a national, the Nation’s
President, and not a partisan President. Few things would contribute as much
to confidence in you as a national and not a partisan President than for you
to name a Republican, who has the profession’s confidence, as Chief
Justice.
The President did not commit himself, but Felix Frankfurter was fairly confident
that the choice would be Stone, and he so informed his fellow justice associate.
A few days later FDR discussed the matter with Jackson, explained the persuasiveness
of Frankfurter’s logic, and again assured his Attorney General that
he would send him to the Court. Jackson concurred fully with Frankfurter and
received the President’s permission to advise Stone himself. Not many
years later, after he had become a member of the Court, Jackson would write
that the need for judicial leadership and the “desirability for a symbol
of stability as well as progress” were evidently the reasons for the
initially Coolidge-appointed Stone’s elevation “in the interest
of {the fostering of the} judiciary as an institution.”
A nationwide chorus of praise and acclaim greeted Stone’s nomination
on June 12, 1941. The press was ecstatic, the judiciary delighted, the intellectual
community reassured, Congress happy. When the nomination officially reached
the floor of the Senate on June 27, he was confirmed viva voce without a single
objection.
Harlan Fiske Stone was almost 69 when he succeeded Hughes in the center chair,
the oldest chief justice-appointee to date. He would live only for not quite
five years longer, but – although those years proved far less satisfactory,
less happy than his sixteen as associate justice – they did not deter
the experts from ranking him as one of the great jurists on the highest bench.
Yet he was clearly more comfortable in being a member of the team than in
leading it. Not a first-rate administrator like Taft, not a skillful and disciplinary
Court-master like Hughes, not a ruthless craftsman like Marshall, not so persuasive
as Taney, not so beautiful a writer as Jackson, not so innovative cum activist
as Warren, Stone was reluctant to crack down and adverse to do battle with
warring factions, thus contributing to a marked divisiveness on the Court
during his chief justiceship, led by a prolonged and nasty feud between Black
and Jackson over ambitions to become chief justice, questions of recusal,
disagreements on Curt protocol, and Jackson’s absence in Nuremberg.
Moreover, Stone really disdained the routine of administrative detail that
he now found incumbent upon him. Yet there were precious few who understood
and followed the command and restraints of the Constitution, who supported
the essence of limited government, who enhanced the concept of popular government
under law, who furthered respect for, and a liberal interpretation of, the
Bill of Rights as fully as Stone did.
As he could not be groom, Robert H. Jackson would be best man, and it was
to no one’s surprise that the 49-year-old Attorney General was selected
to fill the vacancy created by the Stone promotion. His appointment took a
while longer to be approved than had been anticipated, chiefly because of
the opposition of Senator Millard E. Tydings (D-Md.), who was unhappy with
Jackson ever since the latter had refused to prosecute columnist Drew Pearson
for publishing an alleged libel against the powerful and proud legislator.
But the judiciary committee unanimously approved Jackson after but a few minutes
deliberation, and the Senate confirmed him on July 11, with only Tydings dissenting.
Jackson was eminently qualified to serve on the Court. Although he had not
had a single day of judicial experience, and although his formal legal training
had been meager (he passed the New York bar exams without having graduated
from law school), he achieved a reputation as a brilliant private and public
lawyer in upstate New York, where he had built a lucrative practice and become
active in Democratic politics. He attained early national exposure as a close
ally of Roosevelt when the latter was governor of New York, and he was an
effective campaigner for FDR at the Democratic National Convention as well
as during the election of 1932. Initially, as pointed out above, he refused
to follow his friend and idol to Washington, but ultimately he yielded, accepting
Roosevelt’s appointment as general counsel of the Bureau of Internal
Revenue. A vigorous defender of, and spokesman for, the New Deal programs
(including the Court-packing scheme), Jackson began a rapid climb though sundry
posts, notably in the Department of Justice. Beginning as assistant attorney
general in the Antitrust Division, he succeeded to the solicitor generalship
– where he did so well in his role as the Governor’s lawyer that
Justice Brandeis was moved to comment, as I noted at the outset of these remarks:
“Jackson should be Solicitor General for life,” and then to the
attorney generalship. In his posts he combined hard work and expertise with
persuasiveness, charm, and a superb, elegant command of the English language.
II.
An examination of how the members of the Supreme Court have been ranked or
rated by informed Court watchers points to the complexities of establishing
agreed-on criteria. Yet it also indicates a remarkable degree of agreement,
which is especially noteworthy given the subjectiveness of judgments based
on elusive standards. One of the first formal professional attempts to organize
an evaluation of the performance of the first 96 individual justices (through
Thurgood Marshall) was designed by law professors Albert P. Blaustein of Rutgers
University and Roy M. Mersky of the University of Texas in 1970. Enlisting
65 law school deans and professors of law, history, and political science
(of whom I was privileged to be one), the project asked each participant –
all of whom were presumed to be experts on the Court and its personnel –
to grade each of the 96 justices on a continuum from “great” (A),
through “near great” (B), “average” (C), “below
average (D), and “failures” (E). Other than these five categories,
neither criteria, yardsticks, nor measuring rods were provided to the participants
to assist in making the appraisals. We were left to our own judgmental devices
with the self-perceived parameters of those five adjectives, although we were
invited to provide supplementary explanatory remarks. The undertaking, published
in 1978 in book form by the coauthors of the project, produced 12 “greats”,
15 “near greats”, 55 “average”, 6 “below average”,
and 8 “failures”. Only one, Chief Justice John Marshall, received
all 65 votes under the rubric of “great”; next came Justice Brandeis
with 62, followed in third place by Justice Holmes with 61; Justice Black
was a distant fourth with 42. The remaining 8 of the 12 ranked as “great”
were, in chronological order: Story, Taney, Harlan I, Hughes, Stone, Cardozo,
Frankfurter, and Warren. (Professor Mersky, joined by Attorney William David
Bader, undertook a second evaluation – in which I again participated,
to be published in late 2003.)
Despite the amorphousness and disputability of the notion of “greatness”
in a justice – a century ago, Chief Justice Horace Gray of the Supreme
Court of Massachusetts deliberately used the adjective “great”
to characterize John Marshall as “the greatest Judge in the language”
– those categorized as such by the 65 raters had, in their considered
judgment, made significant, readily recognizable, indeed, seminal contributions
to the development or identification of constitutional law. There was wide
agreement that such a mark of “greatness” on the Supreme Court
was, as Blaustein and Mersky put it well several years later, the combined
result of several qualities:
Scholarship, legal learning and analytical powers, craftsman and technique,
wide general knowledge and learning, character, moral integrity and impartiality
diligence and industry, the ability to express oneself orally with clarity,
logic, and compelling force, openness to change, courage to take unpopular
decisions, dedication to the Court as an institution and to the office of
Supreme Court justice, ability to carry a proportionate share of the Court’s
responsibility in opinion writing, and finally, the quality of statesmanship.
One may grant that “greatness” is not quantifiable,
yet the evidence is persuasive that the term or concept is not only a meaningful
one in the eyes of qualified observers of the judicial function at its apex,
but there is something closely akin to consensus among them – observers
who represent the gamut of the sociopolitical and professional spectrum. Those
at the seat of power of the nominating and appointment process will, in other
words, be in a position to opt for merit. Should the decision to be for something
less than that, as it has been indubitably from time to time, that is of course
attainable, too. Although it is impossible to foretell future on-bench performance
– as so many presidents have found out, often to their chagrin and sometimes
to their delight – an established record and profile of potential appointees
is assuredly not attainable. Simply to brush off clarion calls for merit-basis
appointments on the grounds of “eye of the beholder” is at best
a crude oversimplification and at worst intellectually dishonest.
It is noteworthy that 13 years earlier than the first-described project, Justice
Felix Frankfurter offered his list of “greats” (even so precise
as linguist as he offered no substitute for that categorization) on the occasion
of a celebrated address at the University of Pennsylvania, “the Supreme
Court in the Mirror of Justices.” He excluded all those appointed after
1932 and, thus, three FDR appointees who would be listed as “great”
in the Blaustein and Mersky rankings, namely Black, FF himself, and Stone,
plus the first Eisenhower appointee, Warren. Frankfurter’s rather more
generous roster comprised the other eight “greats” from the Blaustein
and Mersky group, to which he added eleven: W. Johnson, Curtis, Campbell,
Miller, Field, Bradley, Matthews, Brewer, Brown, E.D. White, and Moody (of
whom six – W. Johnson, Curtis Miller, Field, Bradley, and E.D. White
– would be rated “near great” in the 1970 Blaustein and
Mersky study, and the other five “average”). Four years after
FF’s list, Judge Jerome Frank, another ardent Supreme Court scholar-observer,
issued his list of rank-perceptions – a somewhat longer one still –
bit it also excluded all post-1932 appointees. The Frank list’s top
choices included, as had Frankfurter’s, all of the pre-1932 “greats”
designated by the Blaustein and Mersky poll, and it embraced all of Frankfurter’s
additional eleven except Matthews, Brown, and E.D. White, none of whom, it
will be recalled, had been among the twelve “great” of the Blaustein
and Mersky group.
That there is, indeed, a rather wide general index of agreement on what constitutes
“greatness” on the Court, in terms of its individual members,
is demonstrated by several considerably more recent roster-polls, for example,
in 1978, 1979, and 1983, that relied on Court experts. As had the aforementioned
earlier ones (and some in the interim), they patently confirm the now evidently
well-established and recognized roster of “greats.” That evidence
prompted the American Bar Association Journal to publish its authoritative
list. In a gaily colored article in 1983, entitled “The All-Time All-Star
All-Era Supreme Court”, its “Supreme Court Nine” of “greats”
comprised, in chronological order, John Marshall, Story, Taney, Holmes, Hughes,
Brandeis, Cardozo, Black and Warren – the top four vote getters being
Marshall, Story, Holmes, and Cardozo. In “Who are the Great Justices
and What Criteria, Did They Meet,” the lead essay in William D. Pederson
and Norman Provizer, Great Justices of the U.S. Supreme Court, Professor Robert
C. Bradley presents sundry “Great Justices” tables, depicting
the ratings by various groups of experts and lay observers of the Court. They
are remarkably similar in their judgments, reconfirming the above-described
consensus. Thus, his own list (1991-92) of the ten “greats” based
on elicited responses from scholars in the judicial process show (1) John
Marshall, (2) Holmes, (3) Warren, (4) Brandeis, (5) Brennan, (6) Black, (7)
John Marshall Harlan I, (8) Douglas, (9) Frankfurter, and (10) Cardozo –
the liberal giants Brennan and Douglas being notable elevations to the top
ten (they had been in the “near great” category). According to
responding judges, a much smaller participating universe, the top ten as of
1992 were seen by them as (1) John Marshall, (2) Holmes, (3) Cardozo, (4)
Brandeis, (5) Warren, (6) Black, (7) Frankfurter, (8) Brennan, (9) Douglas,
and (10) Taft. Attorneys, a far more numerous group of respondents than the
judges, chose (1) John Marshall, (2) Holmes, (3) Brandeis, (4) Cardozo, (5)
Frankfurter, (6) Warren, (7) Douglas, (8) Black, (9) Taney, and a triple tie
for the tenth slot, Story, John Marshall Harlan II, and Rehnquist. A current
group of students advanced, not surprisingly, a rather different roster of
ad hominem preferences: (1) John Marshall, (2) Rehnquist, (3) O’Connor,
(4) Burger, (5) Warren, (6) Brennan, (7) Holmes, (8) Blackmun, (9) Thurgood
Marshall, and (10) Black.
Appearing on all of the above compendia were four: John Marshall (first on
every list), Holmes, Black and Warren. Three, Brandeis, Cardozo and Frankfurter,
appeared on all but the students.
Most recently, Professor Michael Comiskey elucidated the results of his survey,
which he limited to the 52 justices appointed in the 20th century, beginning
with Holmes (1902) and ending with Breyer (1994). Two hundred constitutional
law scholars were asked to rank the 52 on a five-point scale, ranging from
“excellent” to “failure.” The 61 who responded categorized
eleven as “excellent.” Transposing “excellent” in
to “great” (for our purposes) provides the following results:
1 and 2 (a tie) Holmes and Brandeis; 3. Cardozo; 4. Brennan; 5. Harlan II;
6. Warren; 7 and 8 (another tie) Hughes and Black; 9. Stone; 10. Frankfurter,
and 11. Robert Jackson, his only listing as “great” among all
the published ratings, arguably a distinct injustice.
Instead, the Court historians and observers have opted to recognize Jackson’s
achievements as “near great.” His tenure was not an entirely happy
one. He had wanted to be chief justice; tragically, his path was blocked in
considerable measure by the doctrinal and personal feud with Hugo Black. Largely
because of Jackson’s strong feelings, some of their controversy was
carried on in public – harming Jackson far more than Black and exacerbating
Chief Justice Stone’s problems in maintaining a harmonious Court. Jackson’s
acceptance of President Truman’s request in 1945 to become the U.S.
chief prosecutor at the Nuremberg Nazi War Crimes Trials, and his subsequent
absence from the Court for an entire term, compounded his difficulties with
his colleagues – not to mention the business of the Court, which had
to operate with eight justices and the attendant all-too-present danger of
4:4 tie votes of which were a score. Jackson was brilliant at Nuremberg –
notwithstanding some critics, such as Sir John Wheeler Bennett – yet
he returned from the trials a different man: the one liberal judicial activist,
who had often sided with Black, Douglas, Murphy and Rutledge, had become profoundly
cautious, a markedly narrow interpreter of the Bill of Rights, especially
in criminal justice cases. He now more often than not sided with the Frankfurter
wing of the Court, which took a generally restrictive stand in matters affecting
national security and state criminal-justice procedures. This intriguing metamorphosis
may well have resulted from his Nuremberg experiences – his first hand
perception of the melancholy events resulting in the destruction of the Weimar
Republic and the rise of Nazism. It was his conclusive judgment that one of
the major contributory factors was the failure of the Weimar government to
crack down on radical dissenters and extremist groups – which is why
he exhorted his colleagues in his famous Terminiello dissent in 1949 that
they beware lest they “convert the constitutional Bill of Rights into
a suicide pact.”
Yet, he remained an apostle of judicial restrain in the economic-proprieterian
sphere, supporting governmental authority to regulate and thus remaining true
to his basic New Deal commitments. He was ever conscious of, and preoccupied
with, the limits of both judicial capacity and judicial power. And even if
there were not other justification for holding Jackson in high esteem as a
jurist, his magnificent prose – second in beauty and clarity perhaps
only to that of Cardozo – has earned him the nation’s high regard
and gratitude. Who could ever forget the haunting beauty of his phrases such
as those in his memorable opinion striking down the West Virginia flag salute
in 1943? “Those who begin coercive elimination of dissent,” he
warned his countrymen, “soon find themselves exterminating dissenters.
Compulsory unification of opinion achieves only the unanimity of the graveyard.”
And elaborating:
If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein…The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the Courts. One’s right to
life, liberty, and property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to vote; they
depend on the outcome of no elections.
On October 9, 1954, an untimely death came to Robert Jackson when he succumbed to a heart attack en route to the Court. That May he had still participated in the Court’s unanimously decided, momentous public school desegregation cases. In some ways he died a bitter and disappointed man – never having attained the coveted Court leadership – but he left a legacy as America’s Advocate.
III.
It is a pity that none of the sparse number of biographies that have addressed
the career or careers of “America’s Advocate” have accorded
him full justice. Yet they are quite properly as one in agreeing, in the words
of Professor Glendon Schubert, whose Dispassionate Justice, published in 1969,
represents a synthesis of Jackson’s opinions on the Supreme Court, that
“More than any other Supreme Court justice [in the 20th century] Robert
Jackson was the voice of the bar, speaking from the bench.” (P.vii)
He was the layer of and for lawyers. He would very likely have seconded Chief
Justice Taft’s oft-quoted celebration of the judicio-legal universe:
“I love judges and I love courts. They are my ideals on earth of what
we shall meet afterwards in Heaven under a just God.” However, Jackson
might have skipped the second sentence and quoted with approval his friend
and colleague Felix Frankfurter, who commented on the Taft statement that
Taft “had a very different notion of heaven than any I know anything
about.”
Yet Jackson’s love of the law and those who adjudicate and interpret
it did not fail to recognize the latter’s limits in our constitutional
universe, limits that he frequently addressed. Thus he noted in his posthumously
published (1955) “Godkin Lectures on the Essentials of Free Government
and the Duties of the Citizen” that while the Supreme Court, at the
zenith of the judiciary, manifests the triad of legal, governmental, and political
characteristics and functions:
However well the Court and its bar may discharge their tasks, the destiny
of this Court is inseparably linked to the fate of our democratic system of
representative government.
Robert Jackson was an abiding Democrat (upper case “D”),
but he was even more of a democrat (lover case “d”), one whose
passion was the verbiage, the commands of the written Constitution. He was
no friend of legislative forays by judges; he was a demonstrable devoté
of judicial restraint; like Justice Frankfurter and John Marshall Harlan II,
who succeeded Jackson on the Court, judicial activism was for him irreconcilable
with representative democracy.
Essentially, Justice Jackson’s jurisprudence on the high bench was centrist,
ever mindful of the Court’s constitutional parameters of authority and
power. Basically a moderate, he was not comfortable with the often predictable
jurisprudence of the four liberal justices, who served with him during much
of his tenure, namely, Black, Douglas, Murphy, and Rutledge, notwithstanding
his passionate embrace of the Bill of Rights. It was an embrace that, for
example, saw him join his colleagues Roberts and Murphy in dissenting from
the six-member majority in the traumatic 1944 Japanese evacuation case of
Korematsu v. United States, with Jackson exhorting: “Now, if any fundamental
assumption underlies our system, it is that guilt is personal and not inheritable.”
And that embrace, to cite another famous opinion. Prompted his majority opinion
for the 6:3 Court in the 1943 ruling of West Virginia Board of Education v.
Barnette, striking down West Virginia’s compulsory flag salute, his
elegant, majestic pen reminding the polity that “those who begin coercive
elimination of dissent will soon find themselves exterminating dissenters.
Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Yet that embrace of the Bill of Rights in all its aspects did not blind him
to drawing lines and pointing to limits when that seemed appropriate. He became
acutely conscious of that necessary task following his Nuremberg experience,
evidently concluding that governments who wish to remain free must take a
stand against certain subversive activity less they perish as did German’s
Weimar Republic. Hence, in one of his most famous dissents, he joined Justices
Frankfurter and Burton and Chief Justice Vinson in unsuccessfully pleading
to uphold Chicago’s attempts to harness the mob incitement of American
fascist leader Gerald L.K. Smith, concluding memorably:
The choice is not between order and liberty. It is between liberty with
order and anarchy without either. There is a dander that, if the Court does
not temper its doctrinaire logic with a little practical wisdom, it will convert
the constitutional Bill of Rights into a suicide pact. (Terminiello v. Chicago,
1949.)
A case could be made for the contention that the post-Nuremberg
Jackson was a new Jackson – a more conservative, or a less liberal one,
than the pre-Nuremberg Jackson. I have been among those who have been tempted
to make that case, but I have begun to recognize that if such a change can
in fact be documented it is but a marginable one, be it in the civil rights
and liberties realm or in that of the economic-proprieterian sphere.
The self-made country “lawyer’s lawyer” was both an economic
conservative and a champion of individual liberty. He was profoundly committed
to a basic creed of leaving people alone, but he did not support a jurisprudential
policy of writing personal visions of correct policy into law. That he viewed
as a legislative branch task in concert with the executive. Robert Jackson
remained to judicial restraint, which encompassed his conviction that the
Court’s role should not be viewed as a panacea for every blot upon the
public welfare, nor should the Court, as fellow-judicial restraint champion,
John Marshal Harlan II, urged in joining similarly motivated Felix Frankfurter
in a memorable dissenting opinion in Baker v. Carr, the 1962 “one-man-one-vote”
decision, “be thought of as a general haven for reform movements.”
To a considerable degree Jackson’s jurisprudence found disciples in
such contemporary centrist justices as Lewis F. Powell, Jr. and Sandra Day
O’Connor.
In fine, Jackson’s legacy is highlighted by his principled judicial
restraint in all phases of the appellate judicial process; his soaring magnificent
penmanship of the 300 plus opinions he wrote – and he wrote them all
himself; and his leadership in establishing a world law code that rendered
the making of war an international crime and established a multinational tribunal
to conduct trials involving crimes of war, with his brilliant performance
in Nuremberg pointing that way. He may have been rated only “near great”
by the professional Court observers – but his influence in the evolving
judicio-governmental process remains towering.
Transcribed by Charlene J. Peterson, 2003