Robert H. Jackson

By any standard, Robert H. Jackson had a remarkable legal career, culminating in his appointment to the Supreme Court in 1941. Yet there was an enigmatic and unpredictable quality to Jackson that makes him a challenging figure to assess. In this volume, G. Edward White, a distinguished judicial biographer, has authored an outstanding study of Jackson’s personal and professional life.

Reared in the rural environment of Pennsylvania and western New York, Jackson was the last member of the Supreme Court to prepare for the bar examination primarily as an apprentice in a small law firm, with only one year of law school. While successfully practicing law in Jamestown, New York, Jackson, a Democrat, made the acquaintance of Franklin Roosevelt. Roosevelt’s election as president in 1932 set the stage for Jackson’s meteoric rise in government service. The Roosevelt administration called Jackson to posts in a series of administrative agencies and the cabinet, including both solicitor general and attorney general.

Although on the Court Jackson gained a reputation for “pragmatic, centrist constitutional jurisprudence,” rather than as “an ideologue” (p. 331), he entered the public arena as an ardent supporter of the New Deal who greatly esteemed Roosevelt. For example, in 1937 Jackson emerged as a leading proponent of Roosevelt’s ill-fated court-packing scheme. When this plan failed in Congress, Jackson, at the urging of Roosevelt, wrote The Struggle for Judicial Supremacy (Vintage Books, 1941). A central thesis of this book was the contention that the court-packing proposal had caused the Supreme Court to become more receptive to the New Deal legislative agenda. It was an attempt to turn a defeat into a claim of victory. Citing recent scholarship, White is rightly skeptical that there was a relationship between the threatened court-packing and any shift by the Court. He views the book as “a version of winners’ history” (p. 282).

An affinity for New Deal constitutionalism continued to characterize Jackson’s tenure on the Supreme Court. This was well demonstrated by his sweeping opinion in Wickard v. Filburn, 317 U.S. 111 (1942), upholding application of the Agricultural Adjustment Act to wheat consumed on a farmer’s own land. It gave an expansive reading to the Commerce Clause of the Constitution, finding that Congress could in effect determine the extent of its authority to regulate commerce among the states. Thus, Congress could reach even the most indirect and remote impacts upon interstate commerce. In so doing, Jackson jettisoned the traditional jurisprudence that sought to cabin federal reach to preserve federalism. This conclusion is hard to square with the original understanding that the Constitution created a limited federal government of enumerated powers. Moreover, Jackson fancifully claimed the decision simply “brought a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden [22 U.S. at 88]” (Wickard v. Filburn, 317 U.S. at 122). This illustrates the penchant of New Deal justices for mythological reconstructions of history to provide some legitimizing cover for significant jurisprudential changes. Jackson’s Wickard opinion was in the mode of what would later be dubbed “living constitutionalism,” with a faux gesture to history.

Despite his enthusiastic endorsement of New Deal liberalism, Jackson’s judicial record defies easy categorization. In marked contrast to his broad reading of the Commerce Clause, he opposed invoking the Due Process Clause of the Fourteenth Amendment to oversee state criminal procedures. In this area Jackson demonstrated a more conservative commitment to federalism and states’ rights.

For all of Jackson’s successes in so many areas, White pictures him as “something of a loner and gadfly on the Court” (p. 74). Jackson often found the atmosphere on the Court chilly and disappointing. This was partly a function of his personality. Jackson was by temperament more of an advocate than an adjudicator. Fiercely independent and a perfectionist, he found compromise hard. In addition, when he joined the Court, Jackson was distressed that the seemingly trivial domestic disputes on the docket were overshadowed by World War II.

Other factors, however, were also at play. In the 1940s, the Supreme Court, virtually all of whose members had been appointed by Roosevelt and supported his New Deal program, was badly fragmented. There was a high level of personal animosity among the justices. (See Cliff Sloan, 2023, The Court at War: FDR, His Justices, and the World They Made, Public Affairs.) In this acrimonious environment, Jackson made few friends aside from Felix Frankfurter. Indeed, he had a low opinion of some of his colleagues. Jackson had a running feud with Hugo Black and felt that Black tried to bully him into accepting Black’s positions on cases (p. 141). Jackson early concluded that William O. Douglas’s “approach to judging was fundamentally political and self-serving” (p. 250). He dismissed Frank Murphy as “the equivalent of a political hack” (p. 325). Not surprisingly, White reports that Jackson rarely discussed work with his colleagues and often authored separate opinions. He never sought to build coalitions. This unhappy experience helps to explain Jackson’s frequent offers to resign.

Had Jackson found his time on the Supreme Court more rewarding, he might have been less inclined in 1945 to accept the invitation to serve as the chief American prosecutor at the Nuremberg war crimes trial. To the distress of some of his colleagues, Jackson missed the 1945–46 term of the Court. Yet he relished his return to the role of advocate and regarded his work at Nuremberg not only as a vital contribution to international law but also as more important than his work on the Supreme Court. White gives an informative and judicious assessment of Jackson’s experience as prosecutor, noting his repeated frustration with the Russians.

When Jackson returned to the Court in October 1946, the jurisprudential landscape had altered. In the atmosphere of the emerging Cold War, national security issues came to the forefront, fueled by growing distrust of communism. Drawing on his Nuremberg experience, Jackson saw communism as a vile totalitarian ideology and a threat to the security of the United States. Thus, in 1950 he voted to sustain the conviction of Communist Party leaders under the Smith Act, which made it a crime to advocate violent overthrow of the government. Jackson was never a First Amendment absolutist and was inclined to balance maintenance of public order and national security against free speech claims.

Two cases decided late in Jackson’s tenure on the Court are important to understanding his legacy. During the Korean War, President Harry S. Truman seized the steel mills to avert a national strike, which, it was argued, would jeopardize our national defense. (See Maeva Marcus, 1977, Truman and the Steel Seizure Case: The Limits of Presidential Power, Columbia University Press.) Jackson agreed with the majority that the president’s action was unauthorized by Congress or the Constitution. However, he authored a thoughtful review of presidential powers in a concurring opinion. He set forth three classifications in which the president might assert executive authority and concluded that President Truman had acted beyond his power. Jackson stressed that the recognition of undefined emergency power in the executive threatened the constitutional balance.

White points out that Jackson felt conflicted on some issues. This was especially true as Jackson grappled with whether racial segregation in public schools was constitutional. Although not a defender of segregation, Jackson had a difficult time justifying on legal grounds a ban on the long-standing practice of school segregation. He dismissed sociological evidence. Jackson was also concerned about the practical problems of implementing any judicial decree invalidating separate schools in the face of opposition. He insisted that Congress must be involved in the task of implementation. Jackson worked through his concerns by writing a series of memoranda to himself in which his thinking slowly evolved. He was among the last justices to join the Court’s opinion in Brown v. Board of Education, 347 U.S. 483 (1954). Jackson died only months later. White never makes clear whether Jackson had a late change of opinion and abandoned his frequently articulated reservations about striking down school segregation or felt pressure to join the other justices rather than dissent alone.

One neglected issue that might have received attention from White is Jackson’s attitude toward the place of private property in the constitutional order. Of course, the rights of property owners were downplayed in the New Deal years. Still, Jackson participated in several takings cases dealing with the question of just compensation. Dissenting in United States v. John J. Felin & Co., 334 U.S. 624, 651 (1948), Jackson insisted: “The war did not repeal or suspend the Fifth Amendment.” He maintained that regulated prices imposed during war should not be confused with the constitutional requirement of just compensation for property taken by the government. Jackson also joined an opinion that capaciously described property as “the right to possess, use and dispose” of a physical thing, and he declared that the “constitutional provision is addressed to every sort of interest the citizen may possess” in United States v. General Motors Corp., 323 U.S. 373, 377 (1945). It would be well worth exploring why Jackson, despite his New Deal sympathy, retained some solicitude for the rights of owners.

The deeply researched book White has authored will surely become the definitive biography of Jackson. White provides a balanced portrait of a complex and even contradictory figure who forged a unique constitutional outlook, and who, despite his personal frustrations, occupied a pivotal role on the Supreme Court and penned some memorable opinions.