Robert H. Jackson Center

Thoughts on Justice Jackson’s Unpublished Opinion

By E. Barrett Prettyman, Jr., Esq.
Athenaeum Hotel
Chautauqua, New York
October 8, 2003

Those of you who are familiar with Justice Jackson’s unpublished opinion in Brown v. Board of Education may have wondered why he so readily joined Chief Justice Earl Warren’s opinion in that case. So I thought I would explore that tonight.

I apologize in advance for such a serious after-dinner, after-drinks subject, but I think it’s important at this place and this time that we understand the Justice’s mindset just prior to his death.

Commentators, including the estimable Richard Kluger, have all referred to his unpublished opinion as a single document. In fact, the Justice began writing it as early as the end of 1953, and on five separate occasions thereafter rewrote and expanded the original draft. Let’s put these drafts in context.

The first oral argument in Brown took place in December 1952; I became the Justice’s only law clerk in the early summer of 1953; in September, Chief Justice Vinson died; and three weeks later Chief Justice Warren took a recess appointment.

The second oral argument was on December 8 of that year, and Justice Jackson began writing the first draft of his own opinion, voting to rule school segregation unconstitutional, the day before that second argument.

What was his state of mind at that point? It’s fair to say that he had little reason to believe that the confusion which had attended Brown during the Vinson years had dissipated; he assumed that most if not all of the Justices would be writing their own opinions; he certainly believed that there would be dissents; and he was fearful that the majority would place blame for the past on everyone but the Court itself.

To continue the chronology, the Justice repeatedly made changes in his draft in January, February and March of 1954, and then on March 15 for the first time gave to me for comment what turned out to be the final, 23-page version.
I wrote him a frank and very critical memorandum. I typed it myself and I must confess that in my naivety it never occurred to me that anyone would ever see it except the Justice.

My main problem was that the tone of his draft was so negative and even confrontational that I thought it would give voice to those who opposed the Court’s decision. Don’t misunderstand me – he was not negative toward the result being reached – an overriding of Plessy v. Ferguson - but rather toward how he assumed the majority would frame its opinion. I’ll come back to that in a moment.

On March 30, 1954, two weeks after his last draft, Jackson had a heart attack and was hospitalized. At this point he had not shown his draft to any other Justice.

I was there in Doctor’s Hospital when the new Chief Justice brought Jackson a first draft of his own Brown opinion. I waited down the hall while the two talked, and after Warren left I read the opinion. Justice Jackson, although disappointed that it did not rely on more law, seemed overwhelmingly relieved that it contained none of the attributes he had feared, and delighted that it was an opinion he could join.

He had me type up a paragraph as a suggested addition, but the Chief Justice subsequently rejected it for a very good reason: the paragraph could apply to segregation in general, and the Chief did not want even to intimate that segregation would be struck down in areas other than education. He was, you will recall, a consummate politician.

At Jackson’s suggestion, the Chief did add this sentence to the Brown opinion: “Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world.” You will see in a moment how this harks back to Jackson’s own drafts.

The District of Columbia case worried Jackson probably more than any other Justice on the Court, because the Fifth Amendment, applicable to the District, did not contain an equal protection clause, as did the Fourteenth Amendment, applicable to the States. Justice Jackson persuaded the Chief Justice to insert the following sentence in the Bolling v. Sharpe opinion governing the District:

The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and therefore, we do not imply that the two are interchangeable phrases.

Justice Black, however, in turn persuaded the Chief to insert the word “always” in this sentence, so that it ultimately read, “…we do not imply that the two are always interchangeable phrases.”

Justice Jackson was not happy about this one-word addition, since it implied that the two phrases were sometimes interchangeable.
Now let us return to Jackson’s own draft opinion in Brown to try to determine his views.

The most important point, of course, is that he was prepared to vote with what he assumed would be a majority, and strike down segregation in the schools as unconstitutional. He was drafting, in other words, a putative concurring opinion, although it sounded in part more like a dissent.

What worried him the most was that the Court would blame the South or the schools or the lower courts for segregation when they had all simply been following what the Supreme Court itself had explicitly ruled that they could do – segregate on the basis of race so long as facilities and opportunities were equal. He was also worried that the Court would act by fiat without any legal basis whatsoever.

Very near the beginning of his draft he wrote, “However sympathetic we may be with the resentments of those who are coerced into segregation, we cannot, in considering a recasting of society by judicial fiat, ignore the claims of those who are to be coerced out of it,” and he then listed those claims – that many felt with sincerity and passion that their blood, lineage and culture were worthy of protection, and that they had built their institutions on an almost universal understanding that segregation was not forbidden. He pointed out that many minorities practiced together on a voluntary basis.

The white South, he wrote, harbored a deep resentment against the program of reconstruction and the deep humiliation of carpetbag government imposed by conquest. The problem thus involved more than mere racial prejudice. He was sure that it would retard acceptance of the Court’s decision if “the Northern majority” – as he put it – adopted a “needlessly ruthless decree.”

The Court, he thought, should be forthright in acknowledging that the States with segregated schools had not, until the day of the Brown decision, been wrong to regard their practice as lawful.

In fact, the predominant view for almost a century had been that the matter, at least in the absence of Congressional action, was one left for solution by the States. And this view was reinforced by custom, which Jackson called “a powerless lawmaker.”

You can see why, even though I understood the reasons for what he was saying, I was concerned that by showing sympathy for John W. Davis’s argument, instead of placating the South he might be encouraging it to defy the decision.

Unlike the later Warren opinion for the Court, which stated that evidence as to the intent of the Framers was “inconclusive,” Jackson thought it quite clear that the Framers had never intended through the Fourteenth Amendment to outlaw segregation in the schools.

His response, however, was that the original intent was not controlling. Jackson, ever the practical man, thought it absurd to try to divine original intent as to events occurring many decades after the instrument was enacted.

He felt that whatever had been the situation at that earlier time, Negroes had made such remarkable progress in such a relatively short period since the Civil War that discrimination based solely on race simply was no longer supportable. He wrote, “Tested by the pace of history, the [Negro’s] rise is one of the swiftest and most dramatic advances in the annals of man.”

In a multitude of cases, he wrote, the Court, because of changing conditions, had struck down statutes once held constitutional.

He concluded that what warranted the Court’s decision was a change in the Negro population. When first freed from bondage Negroes had no opportunity to show their capacity for education or assimilation, so it was not unreasonable to teach them separately from pupils of more favored background. The practice over the years may even have been to their advantage.

But their “progress under segregation has been spectacular.” Whatever may have been true earlier, the fact that one was now in some degree colored simply could not afford a reasonable basis for classification.

Education had changed too – no longer regarded as a privilege for the few. It was instead both a right and a duty, not purely a local matter, but one of national concern.

The Justice thought that the Fourteenth Amendment gave Congress wide discretion to enact legislation dealing with segregation, binding on all the States. In light of limitations on courts’ power to enforce their decrees, Congress could do a better job of supervision. He obviously hoped Congress would step into the breach. He was prescient when he wrote, “To eradicate segregation by judicial action means two generations of litigation.”

The government had asked that the Court remand to the lower courts with instructions to proceed with enforcement as rapidly as practicable. Jackson responded: “I will not be a party to this casting upon the lower courts a burden of contained litigation under circumstances which subject district judges to local pressures and provide them with no standards to justify their decisions to the neighbors, whose opinions they must resist.”

Jackson favored going no further at the moment than entering an order that the constitutions and statutes providing for segregation were unconstitutional, and then ordering reargument on the contents of any subsequent decree.

In an earlier draft, Jackson made clear that he did not think it appropriate to outlaw segregation on the basis of several considerations then being urged on the Court, including extra-legal criteria from sociological, psychological or political sciences, and the extent to which segregation was offensive to contemporary opinion here and abroad. It wasn’t that he disputed that segregation created an inferiority complex in Negro children which retarded their education; he just didn’t think elusive factors such as these should be imported into the concept of equal protection.

As for public opinion, he asked whether the whole judicial process would mean anything if the Justices bowed to the will of those who had never read a brief, heard the oral arguments, or reviewed the historical research. Legislators, not judges, cater to public opinion.

This section dealing with the social sciences and popular opinion did not appear in the final draft, probably because he just didn’t think it was necessary.

Thus, one may well ask why Jackson was so willing to join the Warren opinion when it differed in several material respects from his own views. The Warren opinion, for example, treated the history of the Fourteenth Amendment as equivocal, whereas Jackson thought it quite clear that the Framers did not intend to wipe out segregation. The Warren opinion relied in part on sociological studies that Jackson apparently thought were not a proper element of equal protection. And, most importantly, Warren based his conclusion primarily on the harm that segregation did to Negro children, whereas Jackson based his on the disappearance over time of any claim that the two races were constitutionally unequal.

I think the answer to why Jackson was willing to join Warren despite these differences is that Jackson liked the simplicity and directness of the Warren opinion; he thought even laymen could understand it; and, as I have said, he was grateful that it did not place the blame on anyone. Remember, unanimity of the Justices was not yet realistically expected.

As a footnote, it is interesting that so much emphasis in the commentaries has been placed on the non-legal sources used by Warren, such as the social studies showing the adverse impact of segregation on Negro children. We who were there know that these studies were added almost as an afterthought and were not critical to the underlying thesis.

Very little attention has been paid to other outside-the-record sources that the parties were not even aware of at the time and that may have had more significance for both the opinion on the merits and ultimate decree. Several groups of law clerks conducted studies outside the record. One of these was Alex Bickel’s 63-page history of the Fourteenth Amendment, and another was my own commentary on maps I had gathered showing the precise location in certain cities of Negro and white houses and schools.

The memorandum I wrote in response to Jackson’s draft opinion took issue with several of his points and with the draft’s structure.

Richard Kluger, in his splendid book, “Simple Justice,” gives me credit for Jackson’s decision to write no more. But another contemporaneous memo I wrote indicates that Jackson fully intended to redo his draft, but was interrupted both by his illness and by Warren’s opinion. In any event, as you all know, Jackson joined with the other eight members of the Court in the unanimous Brown decision.

In an otherwise very fine article in the 1989 Yearbook of the Supreme Court Historical Society, Jeffrey Hockett concludes that “Jackson’s argument for ending segregation was less susceptible than Warren’s.” While no one admired Justice Jackson more than I did, I have to disagree with this conclusion. The Justice’s final unpublished draft opinion was well written – as one would expect – clear, lucid, and fully cognizant of all of the problems attending a rational resolution of the cases. If anything, however, it was too forthright, in light of the people it was trying to reach. Not only would it have been attacked, as Warren’s was, but many of its points would have been used by segregations to bolster their cause.

This may have been one of those very rare occasions when it was to the nation’s interest not to have Justice Jackson writing for the Court – and I think Robert H. Jackson himself would agree with that conclusion.