by Michael E. Keasler, Judge
Texas Court of Criminals Appeals
When President Dressel asked me to deliver the Jackson Lecture,
I was both touched and honored. I thought of all the previous distinguished
lecturers and wondered how I could live up to the high standards they had
set. My immediate reaction was, in the words of Jack Benny, “I don’t
deserve this. But I have arthritis, and I don’t deserve that, either.”
It is particularly appropriate that I should talk to you about the remarkable
man for whom this lecture was named – Supreme Court Justice Robert H.
Jackson. I have pictures of five personal heroes hanging in my chambers –
five individuals who personify excellence. They include Abraham Lincoln, Lou
Gehrig, Professor Charles Alan Wright, legendary District Attorney Henry Wade,
and Robert Jackson. To me, Justice Jackson represents the very best the bench
and bar have to offer.
Robert Jackson was born in Pennsylvania in 1892 but moved to Chautauqua County,
New York when he was five years old. He graduated from high school in 1910
and took a one-year graduate course at Jamestown High School the next year,
while starting a three-year clerkship in a law office. The next year, 1911,
he entered Albany Law School and finished the two-year course of study in
one year. He then went back to Jamestown, finished his clerkship, took the
New York Bar Examination, and was admitted to practice in 1913 at the age
of twenty-one.
Jackson practiced law in Jamestown over twenty years and was very successful.
By all accounts, hew was a complete general practitioner – tough, brilliant,
hard working. He was a lead at the bar, serving as president of his local
bar association and later as Chairman of what is now the ABA House of Delegates.
A friend later said of him, “Robert Jackson represented the advocate
at his best. He possessed the rate combination of a good jury of Chautauqua
County farmers, yet he could argue the points of law involved in the case
with great learning and with unanswerable logic, either before the trial judge
or an appellate court. He had high standards of craftsmanship as a lawyer;
he was thorough and painstaking in preparation.”
In 1930, Jackson was proposed for membership in the prestigious American Law
Institute. In the membership committee then Chief Judge Cardozo supported
his election. When the time came to vote on Jackson, a committee member asked,
“Who is Jackson? I have never heard of him.”
Cardozo replied, “You will – in time.”
In 1934, Jackson joined the Roosevelt Administration as General Counsel of
the Internal Revenue Service. Roosevelt successively appointed him Assistant
Attorney General in charge of the DOJ Tax Division, and Attorney General in
charge of the Anti-Trust Division. He performed each assigned task efficiently
and professionally, quickly earning the reputation as the administration’s
best lawyer. In 1938, Roosevelt appointed Jackson Solicitor General, and he
performed the job so admirably, Justice Brandeis commented that he should
be Solicitor General for life. In 1940, Roosevelt appointed Jackson Attorney
General.
One of his colleagues in the Justice Department later said, “As Attorney
General, Solicitor General, and Assistant Attorney General…he lost but
a single case in the Supreme Court. Against [that] may be tallied some twenty-seven
arguments which he won.”
In April of that year, Jackson addressed the Second Annual Conference of United
States Attorneys. He told them, “Nothing better can come out of this
meeting of law enforcement offices than a rededication to the spirit of fair
play and decency that should animate the federal prosecutor. Your positions
are of such independence and importance that while you are being diligent,
strict, and vigorous in law enforcement you can also afford to be just. Although
the government technically loses its case, it has really won if justice has
been done…”
“The qualities of a good prosecutor are as elusive and as impossible
to define as those which mark a gentleman. And those who need to be told would
not understand it anyway. A sensitiveness to fair play and sportsmanship is
perhaps the best protection against the abuse of power, and the citizen’s
safety lies in the prosecutor who tempers zeal with human kindness, who seeks
truth not victims, who serves the law and not factional purposes, and who
approaches his task with humility.”
One June 12, 1941, President Roosevelt appointed Robert Jackson as Associate
Justice of the Supreme Court. He served there until his death in 1954. A leading
constitutional scholar summarized his judicial career in these words:
“Nature has given him a bright, strong mind – it was one of the
best three or four, possible five, of the Court during his years of service.
It was a disciplined mind – self disciplined, and sharpened by the varied
incidents of a general practice. He attended no college. His engaging style,
his easy acquaintance with good literature, he had acquired for himself. Even
in his one year of law school, his training had been in practical subjects
taught by practical men. The assurance and courage that comes from professional
mastery, that too he had won for himself. So he became an exemplar of the
best virtues we attribute to our tough common-law system. He thought in terms
of concrete operations: a good judge should feel responsible for the practicality
of his judgments. He displayed, too, a constant concern that the Court’s
pronouncements convey to the practitioner a workable rule of conduct. To his
fingertips, he retained a feel for active practice. This was the American
lawyer at his best. What he made of himself is an inspiration and a challenge
to all who follow his calling."
In describing the judicial office, Jackson wrote, “Something happens
to a man when he puts on a judicial robe, and I think it ought to. The change
is very great and requires psychological change within a man to get into an
attitude of deciding other people’s controversies, instead of waging
them. It really calls for quite a changed attitude. Some never make it –
and I am not sure I have.”
He also wrote, “When we went to school we were told that we were governed
by laws, not men. As a result of that, many people think there is no need
to pay any attention to judicial candidates because judges merely apply the
law by some mathematical formula and a good judge and a bad judge all apply
the same kind of law. The fact is that the most important part of a judge’s
work is the exercise of judgment and that the law in a court is never better
than the common sense judgment of the judge that is presiding.”
In his book The Supreme Court in the American System of Government, Jackson
wrote shortly before his death, “My philosophy has been and continues
to be that [the Court] cannot and should not try to seize the initiative in
shaping the policy of the law, either by constitutional interpretation or
by statutory construction. While the line to be drawn between interpretation
and legislation is difficult, and numerous dissents turn upon it, there is
a limit beyond which the Court incurs the just charge of trying to supercede
the jointed in that accusation of others. When the Court has gone too far,
it has provoked reactions which have set back the cause it is designed to
advance and has sometime called down upon itself severe rebuke.”
Jackson believed strongly in judicial restraint and looked askance at attempts
to determine legislative intent. In this respect he was a precursor of Scalia,
Thomas, Easterbrook, and Posner. Listen to his words. Don’t they sound
familiar?
“…[I]t is only the words of the bill that have presidential approval,
where that approval is given. It is not to be supposed that in signing a bill
the President endorses the whole Congressional Record.”
“I should concur in this result more readily if the Court could reach
it by analysis of the statute instead of by psychoanalysis of Congress. When
we decide from legislative history, including statements of witnesses at hearings,
what Congress probably had in mind, we must put ourselves in the place of
a majority of Congressmen and act according to the impression we think this
history should have made on them. Never having been a Congressman, I am handicapped
in that weird endeavor. That process seems to me not interpretation of a statute
but creation of a statute.”
Jackson’s writing style was unique. His colleague Felix Frankfurter
said of him that “[t]o an unusual degree in the history of the Court,
Justice Jackson wrote as he felt. In his case the style was the man…He
wrote as he talked and he talked as he felt. The fact that his opinions were
written talk made them as lively as the liveliness of his talk…He had
‘impish candor,’ to borrow one of his own phrases. Candor, indeed,
was one of his deepest veins…There was nothing stuffy about him and
therefore, nothing stuffy about his writing…No man who ever sat on the
Supreme Court, it seems to me, mirrored the man in him in his judicial work
more completely than did Justice Jackson… His speech breaks through
the printed page. He was one of those rare men whose spoken word survives
in type.”
Another friend said that “[h]e had a reservoir of learning, from which
he drew gracefully and effortlessly. But the most marked quality of his judicial
and non-judicial writing was not the ability to borrow an apt quotation or
to find an idea well expressed by one who had written before him; it was the
ability to think brilliantly in original and bold fashion and to express his
thoughts in forceful and eloquent English of a style inimitably his own. His
writing was pithy and pungent; yet he never sacrificed clarity of thought
for a well-turned phrase. He was a master of the paradox; he had a great love
of alliteration and his antithetical statements were gems. Yet his wit never
descended to the frivolous; it always added a barb to the telling point. His
wit was especially telling when turned upon himself or his Court…”
Examples of his wit abound. In a 1951 ABA Journal article about Supreme Court
advocacy, he said:
“I used to say that, as Solicitor General, I made three arguments in
every case. First came the done I had planned – as I thought, logical,
coherent, complete. Second was the one actually presented – interrupted,
incoherent, disjointed, disappointing. The third was the utterly devastating
argument that I though of after going to bed that night…”
“On your first appearance before the Court, do not waste your time ours
telling us so. We are likely to discover for ourselves that you are a novice
but will think none the less of you for it. Every famous lawyer had his first
day at our bar, and perhaps a sad one… Be respectful, of course, but
also be self-respected, and neither disparage yourself nor flatter the Justices.
We think well enough of ourselves already.”
In the 1953 case of Brown v. Allen, Jackson said, “[R]eversal by a higher
court is not proof that justice is thereby better done. There is no doubt
that if there were a super-Supreme Court, a substantial proportion of our
reversals of state courts would also be reversed. We are not final because
we are infallible, but we are infallible only because we are final.”
Jackson’s exasperation was quite apparent in the 1947 case of SEC v.
Chenery Corp when he wrote in dissent that “[t]he Court’s reasoning
adds up to this: The Commission must be sustained because of its accumulated
experience in solving a problem with which it had never before been confronted!…I
give up. Now I realize fully what Mark Twain meant when he said, ‘The
more you explain it, the more I don’t understand it.’”
With charming candor, Jackson freely admitted his mistakes. In Massachusetts
v. United States he wrote, “Under these circumstances, except for any
personal humiliation involved in admitting that I do not always understand
the opinions of this Court, I see no reason why I should be consciously wrong
today because I was unconsciously wrong yesterday.”
Again, in writing about one of his own Attorney General’s opinions that
he believed should be overruled, he said in a concurring opinion, “I
am entitled to say of that opinion what any discriminating reader must think
of it – that it was as foggy as the statute the Attorney General was
asked to interpret.” Then, quoting Lord Westbury, he wrote, “I
can only say that I am amazed that a man of my intelligence should have been
guilty of giving such an opinion.”
Professor Charles Alan Wright believed that Justice Jackson’s dissent
in the 1944 case of Korematsu v. United States was the most eloquent judicial
statement ever written describing American democracy. Jackson wrote, “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.
“A citizen’s presence in this locality, however, was made a crime
only if his parents were of Japanese birth. Had Korematsu been one of four
– the others being, say, a German alien enemy, an Italian alien enemy,
and a citizen of American-born ancestors, convicted of treason, but on parole
– only Korematsu’s presence would have violated the order. The
difference between their innocence and his crime would result, not from anything
he did, said, or thought, different than they, but only in that he was born
of different racial stock.”
“Now, if any fundamental assumption underlies our system, it is that
guilt is personal and not inheritable. Even if all of one’s antecedents
had been convicted of treason, the Constitution forbids its penalties to be
visited upon him…But here is an attempt to make an otherwise innocent
act a crime merely because this prisoner is the son of parents as to whom
he had no choice, and belongs to a race from which there is no way to resign.
If Congress in peace-time legislation should enact such a criminal law, I
should suppose this Court would refuse to enforce it.”
Justice Jackson correctly predicted that if he were to be remembered by posterity,
it would be for his writing and for his service as the Chief American Prosecutor
at the Nuremberg trials. In 1945 and 1946, at the request of President Truman,
Jackson took a leave of absence from the Court to serve in that capacity.
The major participants agreed that Jackson was the guiding force behind the
organization and implementation of the Trials, and that his performance was
masterful.
In his opening address before the International Military Tribunal, Jackson
said, “The privilege of opening the first trial in history for crimes
against the peace of the world imposes a grave responsibility. The wrongs
which we seek to condemn and punish have been so calculated, so malignant,
and so devastating, that civilization cannot tolerate their being ignored
because it cannot survive their being repeated. That four great nations, flushed
with victory and stung with injury, stay the hands of vengeance and voluntarily
submit their captive enemies to the judgment of law is one of the most significant
tributes that Power has ever paid to Reason.”
In March of 1954, Justice Jackson suffered a heart attack. His doctors told
him that if he reduced his work activities, he could live a relatively long
life. But he left the hospital on May 17 and went directly to Court so that
the entire Supreme Court could be present when Chief Justice Warren announced
the unanimous decision in Brown v. Board of Education. He soon returned to
his rigorous work schedule. On October 12, 1954, a second heart attacked killed
him. He was sixty-two.
In a memorial tribute in the Columbia Law Review, Justice Frankfurter wrote,
“Self-reliance, good humored tolerance, recognition of the other fellow’s
right to be and to thrive, even though you may not think he is a s good as
you are, suspicion of authority as well as awareness of its need, disdain
of arrogance and self-righteousness, a preference for truculent independence
over prudent deference and conformity – these were the feelings that
shaped his outlook on life. He liked his kind without being sentimental about
it; he was gregarious by shy about intimacies.”
In the same Columbia Law Review issue, one of his former Justice Department
colleagues wrote, “He had a quiet courage, which never led to a bellow
of defiance but which permitted him to take in every instance the action he
thought best without discernable thought of criticism or personal injury.
He was modest in manner, yet supremely confident of himself and his judgment.
He had a calm which no crisis could disturb, and standards of honorable conduct
which were both rigorous and unshakeable.”
Possibly, the best description of Robert H. Jackson is found in his own words
– his 1944 “Tribute to Country Lawyers” in the ABA Journal:
“The vanishing country lawyer left his mark on his times, and he was
worth knowing. He ‘read law’ in the Commentaries of Blackstone
and Kent and not by the case system…he did not specialize, nor did he
pick and choose clients. He rarely declined service to worthy ones because
of inability to pay. Once enlisted for a client, he took his obligation seriously.
He insisted on complete control of the litigation – he was no mere hired
hand. But he gave every power and resource to the cause. He identified himself
with the client’s cause, sometimes too fully. He would fight the adverse
party and fight his counsel, fight every hostile witness, and fight the court,
fight public sentiments, fight any obstacle to his client’s success.
He never quit…He moved for new trials, he appealed, and if he lost out
in the end, he joined the client at the tavern in damning the judge –
which is the last rite in closing an unsuccessful case, and I have officiated
at many…”
“He loved his profession, he had a real sense of dedication to the administration
of justice, he held his head high as a lawyer, he rendered and exacted courtesy,
honor and straightforwardness at the Bar. He respected the judicial office
deeply, demanded the highest standards of competence and disinterestedness
and dignity, despised all political use of or trifling with judicial power,
and had an affectionate regard for every man who filled the exacting prescription
of the just judge. The law to him was like a religion, and its practice was
more than a means of support; it was a mission. He was not always popular
in his community, but he was respected. Unpopular minorities and individuals
often found him in their only mediator and advocate. He was too independent
to court the populace – he thought of himself as a leader and lawgiver,
not a mouthpiece…Often his name was, in a generation or two, forgotten.
It was from this brotherhood that American has drawn its statesmen and its
judges. A free and self-governing Republic stands as a monument for the little-known
and unremembered as well as for the famous men of our profession.”
Robert Jackson was a famous man of our profession. Indeed, he was the consummate
professional. His splendid example makes me proud to be a judge and a lawyer.
In the words of Professor Charles Fairman, “He will live in the living
law of the Constitution.”