Resolutions in Honor

Resolutions in Honor of the Memory of the Late Associate Justice Robert Houghwout Jackson of the Supreme Court of the United States

Prepared by the Committee on Resolutions Appointed by Solicitor General of the United States Simon E. Sobeloff

For Presentation to the Memorial Meeting of the Bar of the Supreme Court to be Held at the October 1954, Term of the Court

RESOLUTIONS

Associate Justice Robert Houghwout Jackson died suddenly of a heart attack on Saturday, October 8, 1954, at the age of sixty-two and at the height of his brilliant judicial career. On the convening of the Court on Monday, October 11, Chief Justice Warren made the following statement:

“One short week ago this Court convened for its 164th Term, its membership intact and cheerfully anticipating the work before us. Today the chair of our Brother Jackson is vacant, and we are sad indeed. He passed away last Saturday suddenly but by the Grace of God without suffering. For this we are grateful, because he lived and died as was his great desire – active and useful to the end.

“Able lawyer, statesman and jurist, his passing leaves a great void in this Court. We shall miss greatly his wise counsel, his clarity of expression and his genial companionship.

“For 20 years, as General Counsel, as Solicitor General, as Attorney General of the United States, and as a member of this Court, he labored manfully with the complex and baffling problems of our time. His contributions were great. He has earned his rest.

“Funeral services will be held tomorrow afternoon at three o’clock at the Washington Cathedral, this city. His body will then be taken tenderly to Jamestown, New York, the little city of his youth, where, in pleasant and familiar surroundings, it will abide in peace among his earliest friends.

“In respect to his memory, this Court will not adjourn until Thursday, October 14, 1954, at twelve noon.”

The Chief Justice, all the Associate Justices, and the Clerk and the Marshal of the Court accompanied the remains, along with the family and the office staff of Mr. Justice Jackson, to Jamestown, New York, and the members of the Court acted as honorary pallbearers at the funeral services at Jamestown and at the interment at Frewsburg.

Justice Jackson had suffered a previous attack in the spring of 1954 and had spent several weeks in a hospital in Washington and recuperating at his beautiful home, Hickory Hill, at McLean, Virginia. His doctors gave him the choice between years of comparative inactivity or a continuation of his normal activity at the risk of death at any time. With characteristic fortitude he chose the second alternative. He returned to his work on the Court, sat at the session of May 17, 1954, and joined in the unanimous opinion of that date in the school segregation cases. After a restful summer vacation at his home, at the Bohemian Grove in California and on a fishing trip in Canada, he returned for the present term of the Court and sat at its opening session on Monday, October 4.

The members of the bar of the Supreme Court are met today to honor his memory and to record their estimate of the man, of the lawyer, of the judge, and of the statesman.

He was a self-educated and self-made man in the Lincoln tradition and his life will ever be an inspiration to young men of our time who, all too often, tend to feel that ours may be no longer a land of opportunity.

He was born at Spring Creek, Warren County, Pennsylvania, on February 13, 1892, the son of William Eldred and Angelina Houghwout Jackson. His father, a lumberman, farmer and stock breeder, was a stubborn Scotsman who wanted his son to be a doctor and refused to assist him in obtaining a legal education. He died when the son was a young man. His mother, a woman of strength and fortitude, with the best characteristics of her Dutch ancestry, had a profound influence on her son’s life and character. She died shortly after he became Associate Justice. He was the only son and is survived by two devoted sisters, Mrs. Helen J. Adams, and Mrs. Ella M. Springer, both of Frewsburg, New York.

When Robert H. Jackson was five years old, the family moved across the state line to Frewsburg, Chautauqua County, New York, a small village some five miles south of Jamestown. There he attended grade and grammar school. In 1910 he graduated from Jamestown High School. He never attended college, but immediately entered the office of Frank H. Mott, an able lawyer and like Jackson a Democrat, to study law. He attended Albany Law School for one year and then resumed his studies in Mr. Mott’s law office. He passed the New York State bar examinations and was admitted to practice on November 24, 1913, at the age of twenty-one, when he would normally have been graduating from college. He always retained the view that the old system of studying law in a law office provided one of the best schools for a legal education.

Years later, in his thoughtful address on “Training the Trial Lawyer” (1) delivered at the dedication of the Stanford University School of Law, he made witty reference to this own law education, saying:

“Considerations of an autobiographical nature would make it immodest for me to suggest what a law school should teach and how best to teach it. I am a vestigial remnant of the system which permitted one to come to the bar by way of apprenticeship in a law office. Except for one term at law school, I availed myself of that method of preparation which already was causing uneasiness – which feeling I must have added, for the system was almost immediately abolished. You may be comforted to realize that I am the last relic of that method likely to find a niche on the Supreme Court.”

He was always an omnivorous reader. He devoured everything he could lay his hands on in history, biography, philosophy, the law and the classics of literature, so that he became an extraordinarily well-read man. He was a lifelong student of the Bible, an Episcopalian and a thirty-third degree Mason. He was a deeply religious man but was bound to no orthodoxy.

His farm boyhood taught him the strength and solace that comes from nature and the out-of-doors life. He was an ardent horseman, fisherman, camper, hiker; best of all, he loved a morning canter or a summer camping trip with his daughter, Mary. In the recreations he found release from the turmoil and contentions of an active professional life, although it is said he sometimes argued his cases on horseback.

Standing and reputation came to him rapidly in that greatest school for trial advocates, the general, country and small-town practice. He was early made corporation counsel of Jamestown. Like Lincoln he was a railroad trial lawyer and represented a typical clientele of corporations, large and small, and of individuals, rich and poor. He was vice president and general counsel of a short line railroad and of two traction companies and was director and general counsel of a local bank and of the local telephone company.

He practiced alone until 1919, when he became junior member of the firm of Dean, Edson & Jackson. In 1923 he formed a partnership with Henry S. Manley and Gerald A. Herrick under the firm name of Jackson, Manley & Herrick. The firm became Jackson, Herrick, Durkin & Leet in 1927 and continued until 1933. It was during this period that Robert Jackson developed a social philosophy emphasizing the rights of the individual, of the underprivileged, of small business, and opposing monopoly and oppression in all their forms.

Talents such as he possessed made it inevitable that he should quickly achieve recognition beyond his local community and country. He was one of the leading spirits in the organization of the Federation of Bar Associations of Western New York and was its president from 1928 to 1930. In 1933 he was elected chairman of the National Conference of Bar Association Delegates, then a section of the American Bar Association. In that position he came into contact with lawyers from all over the nation and his national reputation began to grow.

He never sought a career in public life, and, when such a career was pressed upon him, he entered upon it with great reluctance. He prided himself on being a country man and a country lawyer. He wanted to accumulate a modest competency and to live the life of a country squire. He refused all offers to join Buffalo and New York law firms. But, as a Democrat of prominence, in a country in which Democrats were a distinct minority, he attracted the attention of Governor Franklin D. Roosevelt. In 1930, on the nomination of the President of the New York State Bar Association, he was appointed to serve on a special commission created by the legislature of New York to investigate the administration of justice in that state. Three years later Governor Herbert H. Lehman named him director of the New York Scrip Corporation, organized to handle negotiable scrip that the legislature had authorized State banks to issue as an emergency in the current financial stringency.

When the Democrats took over the national administration under President Roosevelt, this up-state country lawyer and Democrat was promptly urged to come to Washington. His reluctance was overcome and early in 1934 he accepted appointment as general counsel of the Bureau of Internal Revenue, Treasury Department. While in that office he conducted important tax litigation with ability and was specially designated as counsel for the Securities and Exchange Commission in the litigation that tested and sustained the constitutionality of the Public Utility Holding Company Act of l935. In 1936 he was appointed Assistant Attorney General in charge of the Tax Division, Department of Justice, and was later placed in charge of the Antitrust Division.

As Assistant Attorney General he was one of President Franklin D. Roosevelt’s ablest advocates in supporting the Bill to Reorganize the Judicial Branch of the Government, in 1937. His interesting book, The Struggle for Judicial Supremacy, shows that he was attracted by the ultimate purposes of that plan rather than by the method proposed.

On March 4, 1938, President Roosevelt made him Solicitor General of the United States, upon the appointment of Stanley F. Reed to the Supreme Court. As Solicitor General, his ability to understand and expound issues, no matter how ramified or complex, together with his surpassing skill in oral argument, won the admiration of the Court and of his brothers at the bar. It was a position that he enjoyed perhaps more than any other he ever held.

On January 4, 1940, he was appointed by President Roosevelt as Attorney General, to succeed Frank Murphy, after the latter’s appointment to the Court. His work in that office was concerned principally with questions arising out of World War II. President Roosevelt’s executive agreement with Great Britain, exchanging fifty over-age destroyers for naval and air bases in the British possessions in the Western Hemisphere, was negotiated on his advice as Attorney General. The international law aspects of this transaction, as well as the legal basis for “Aid to Britain” and the rights of the United States as a non-belligerent, were clearly and powerfully set forth in his address at the Havana meeting of the Inter-American Bar Association, in which he took the position for the United States that the war of aggression waged by Germany was in violation of American treaty rights and that the doctrines of international law did not oblige the United States to remain indifferently neutral but authorized aid to those resisting aggression.

During all this time the future Justice had been completing his self-education, building himself upon himself, preparing for a greater career. His foundations were native ability, general reading, sound common sense and long and successful experience as a trial and appellate court advocate.

When on June 12, 1941, he was nominated Associate Justice by President Roosevelt, his nomination was promptly confirmed on July 7 by the Senate. Four days later he was commissioned and took the oath of office. He took his seat on the Court on October 6, 1941, filling the vacancy caused by the elevation of Associate Justice Harlan Fiske Stone to be Chief Justice of the United States. During the thirteen years of his judicial tenure he was absent from the Court for over a year and a half on the historic Nuremberg War Crimes mission. Thus his active service on the Court comprised less than eleven and a half years, but in that period he made a contribution to our federal jurisprudence seldom excelled in the history of the Republic.

He wrote a total of 318 opinions. Of these, 151 were opinions for the Court, 42 were concurring opinions, and 125 were dissents, although a few of his opinions which we have classified as for the Court were concurred in by less than an actual majority but announced the judgment of the Court.

With little formal education, he developed a literary style wholly different from the styles of Holmes, Cardozo and other great stylists who have adorned the Court. He was as much given to aphorism as Holmes but was much less cryptic. One never had to labor over his pungent phrases to discover a hidden meaning. He would simply state, “Chaos serves no social end.” (2) Or, speaking of the Court, he would dryly remark, “We are not final because we are infallible, but we are infallible only because we are final.” (3) Or he would tersely state, “Environment illuminates the meaning of acts, as context does that of words.” (4)

He wrote with a trenchant, concrete, Saxon-style of great beauty and vigor, nurtured chiefly on the King James Version of the Bible and on Shakespeare. He contributed to the literature of the Court elements of freshness, clarity and originality that will never be forgotten.

A slightly skeptical strain in his thinking, his devotion to freedom of the individual and particularly to freedom of thought and belief, and the charm of his style, are all well illustrated by the following from his separate dissent in United States v. Ballard: (5) “All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to be a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations as one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. * * * I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.”

He had a faculty for stripping away nonessentials and laying bare the heart of a controversy. An effective advocate before he came to the bench, he became and remained a lawyer’s judge. He exposed fallacies in argument relentlessly but with unfailing courtesy and good humor. He admired and enjoyed good advocacy. His expressive face was quick to show appreciation of a professional job well done.

He made many contributions to legal literature and to the work of bar associations. He wrote many important law review articles and all over the United States and in Canada, England and France he delivered memorable addresses on legal subjects. In 1954 the New York bar awarded him its gold medal for distinguished service to the law and to the legal profession. For a year and a half before his death he served diligently as chairman of the special committee set up by the American Bar Association to conduct a comprehensive study of criminal law and procedure in the United States. On November 2, 1953, he delivered an address at the laying of the cornerstone of the American Bar Center in Chicago, eloquently attesting his devotion to the law as a science and as a learned profession. In the title and in the text of that address he used an expression that has been carved over the portal of the Center, calling it “A Cathedral to testify to our faith in the rule of law.”

Friendliness was one of his outstanding characteristics. It is safe to say that no member of the Court in our history has a wider circle of intimate and devoted friends among lawyers and jurists all over the world. He liked to be called “Bob” and usually signed his personal letters that way. Although he had great zest for his work as a member of the Court, he often chafed under the cloistered isolation of the judicial position and always loved to come into intimate and social contact with kindred spirits. His charm of personality, his engaging humor, his conversational and anecdotic gifts, and his frank and forthright manner of expression endeared him to all. But, deeper than all this, he had a faculty of inspiring loyalty in friends, in associates, and particularly in subordinates, that goes only with great personality.

He was a prodigious and indefatigable worker. His opinion for the Court in Morissette v. United States (6) is a good example. Although the case dealt with a narrow and technical question as to when a claim of right constitutes a defense to a charge of criminal conversion of property, Justice Jackson wrote an opinion of twenty-nine pages, coming to grips with the entire vexing problem of the intent and culpability intrinsic to a charge of crime and bringing extraordinary research and erudition to the service of deep moral insight.

He wrote the opinion for the Court in Board of Education v. Barnette (7), overruling the contrary decision in Minersville District v. Gobitis (8) and holding that the action of a State making it compulsory for school children to salute the flag and to take the oath of allegiance violates the First and Fourteenth Amendments. In that opinion he said:

“The very purpose of a Bill of Rights was to withdraw certain aspects 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 election.” (9)

And, after a close analysis of the reasoning in the Gobitis case, he said:

“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.” (10)

His separate opinion, “concurring and dissenting, each in part,” in Communications Assn. v. Douds (11), gives perhaps the best summary of his attitude towards freedom of thought and speech. He said:

“Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to re-examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate’s complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify an censorship only when the censors are better shielded against error than the censored.”

Justice Jackson had personal and professional courage of the highest degree. All knew exactly where he stood. On occasion he could confess his own previous error. In McGrath v. Kristensen (12), he differed with his own opinion as Attorney General and refused to be bound by it. In his concurring opinion, among other illustrations of graceful and good-natured surrendering of former views to a better considered position, he invoked, “My own error, however, can furnish no ground for its being adopted by this Court…” and Lord Westbury’s statement, “I can only say that I am amazed that a man of my intelligence should have been guilty of such an opinion.”

He was the only Supreme Court Justice in our history to take leave of absence from his judicial position in order to perform for the United States a mission in the international field. President Truman, on May 2, 1945, six days before Germany’s surrender, appointed him by executive order, “as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.”

This was a draft to service that Justice Jackson accepted as a patriotic duty. It was a tremendous organizational problem, an outstanding diplomatic responsibility, with the duty of preparing and prosecuting a criminal trial unprecedented in history. If ever a man literally gave his heart to the service of his country, Justice Jackson gave his in that mission.

He conducted the four-power negotiations in London with Great Britain, the Provisional Government of France, and the Soviet Union, resulting in the Agreement and Charter of August 8, 1945, denouncing the plotting and waging of aggressive war as an international crime and setting up the International Military Tribunal. He directed for the United States the negotiations for the drafting of the indictment filed with the Tribunal. He largely directed the combing of the war-torn European Theater for the evidence and he took the leading part in the trial.

This is neither the time nor the place to attempt a summary or evaluation of the Nuremberg trial or of its place in history. Suffice it here to say that it made Justice Robert H. Jackson a world figure. His opening statement and his final summation to the Tribunal will take high place in any history of forensic eloquence of the twentieth century. His handling of the difficult international negotiations was in the best tradition of American diplomacy.

His introduction to a recent book on the Nuremberg trial (13), just off the press a few weeks before he died, was one of his last published writings and contains his estimate of Nuremberg in retrospect. In it he gave his own answers to the criticisms which have been directed against that proceeding. He ended it with his personal, ultimate conclusion, “that the hard months at Nuremberg were well spent in the most important, enduring and constructive work of my life.”

Mr. Justice Jackson returned from Nuremberg covered with honors from European countries. He was the guest of the government of Czechoslovakia in Prague, before the Iron Curtain closed around that brave little country. He was the guest of the Austrian government in Vienna. He was twice received for lengthy audiences by Pope Pius XII. In April 1946, he addressed the French magistrates and lawyers in Paris, on which occasion the Order of Advocates bestowed on him the medal which had been struck off in 1934 for the leader of the French bar, former President Raymond Poincaré, who had died before he could receive it. The magistrates of France also awarded him a special medal. He was installed as an Honorary Bencher of the Honourable Society of the Middle Temple of London. The Cour de Cassation of Belgium, in solemn session, gave him its second reception to an American citizen, the only other having been to Ambassador Brand Whitlock. The University of Brussels conferred on him the degree of Doctor of Laws, and the Prince Regent gave him a state luncheon honoring his contribution to international law. He was received and honored as guest of the governments of Norway, Denmark and Sweden.

In this country degrees were showered upon him by colleges and universities all over our land. President Truman awarded him the Medal for Merit. He received another degree of Doctor of Laws from the Ambassador of Poland, on behalf of the University of Warsaw. The country lawyer who had no college or law degree ended with perhaps as many honorary degrees as were ever received by any member of the Supreme Court.

It should be recorded that when he assumed the judicial robe he ceased to be a partisan and a representative of a particular school of political philosophy. His devotion was to the law. He believed in the law and in that element of stability embodied in the doctrine of stare decisis. He was no hidebound follower of precedent and said in one opinion (14), “Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it” – yet, in another, concerned at the Court’s readiness to overturn its own precedents, he tartly remarked,(15) “But I know of no way that we can have equal justice under law except we have some law.”

His opinions show a deep concern over the difficult problem of accommodating the sometimes conflicting purposed of maintaining freedom of the individual and, at the same time, a stable order of society under the reign of a rule of law. But he was generally on the side of full application of the Bill of Rights until he was convinced that the rule of law was seriously threatened.

It is not easy to fit his thinking on the Constitution and the law into labeled categories. He had written the Godkin Lectures, which he was to have delivered at Harvard University this year. They will soon be published and will set forth his principal views in his own language.

His basic political philosophy was one of moderation in the conduct of public affairs. His standards of public service and his fundamental ideas on the Constitution and the law, formed in simpler times in the relative quiet of Jamestown, continued as guiding principles throughout his life.

One of his finest public utterances, showing his great capacity to appreciate the high qualities of one representing a political philosophy different from his own, was his eloquent tribute, as Attorney General, to Mr. Justice Pierce Butler at the memorial services of the court in the latter’s honor. (16)

On April 24, 1916, in Albany, New York, he married Irene Alice Gerhardt, daughter of Henry Gerhardt, a builder, of Kingston, New York. Charming, cultured, gracious, devoted, she remained his companion, inspiration and comfort throughout his career. She survives him, as do their two children, William Eldred Jackson and Mary Jackson Craighill, and five grandchildren. The children and grandchildren were devoted to him and he to them. William Eldred Jackson, who was his father’s personal aide in London and in Nuremberg, and his son-in-law, G. Bowdoin Craighill, Jr., are both practicing lawyers.

We of the bar of the Supreme Court join the members of the family in their grief and express to them our sympathy in their great loss.

Resolved, that the foregoing Minute be adopted; that a copy of it be transmitted to the Attorney General of the United States for presentation to the Court; and that the Chairman be directed to forward copies of it to the widow and surviving members of the family of Mr. Justice Robert Houghwout Jackson.

Endnotes

1 3 Stanford Law Review 48.
2 State Tax Comm’n v. Aldrich, 316 U.S. 174, 185, at 196.
3 Brown v. Allen, 344 U.S. 443, 532, at 540.
4 Cramer v. United States, 325 U.S. 1, 33.
5 322 U.S. 78, 92, at 94, 95.
6 342 U.S. 246.
7 319 U.S. 624.
8 310 U.S. 586.
9 319 U.S. 624, 638.
10 319 U.S. 624, 642.
11 339 U.S. 382, 422, at 442-443.
12 340 U.S. 162, 176, at 178.
13 Tyranny on Trial, by Whitney R. Harris, Southern Methodist University Press, Dallas, 1954.
14 United States v. Bryan, 339 U.S. 323, 343, at 346.
15 Brown v. Allen, 344 U.S. 443, 532, at 546.
16 310 U.S. xiii-xv.

Transcribed by Charlene J. Peterson, 2004

Resolutions in Honor