Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He was also the chief United States prosecutor at the Nuremberg Trials. He is the last Supreme Court justice not to have graduated from law school.
Mr. Jackson was a prominent member of the New Deal, litigating against the excesses of wealthy corporations and utility holding companies. He participated in the 1934 prosecution of Samuel Insull, the 1935 income tax case against Andrew Mellon, and the 1937 anti-trust case against Alcoa, in which the Mellon family held an important interest.
In Jewell Ridge Coal Corp. v. Mine Workers (1945), the Supreme Court faced the issue of whether to grant the coal company’s petition for rehearing on the grounds that the victorious miners were, in a previous matter, represented by Crampton P. Harris, who was Justice Black’s former law partner and personal lawyer. Despite this apparent conflict of interest, Black lobbied the Court for a per curiam denial of the petition. Justice Jackson objected, with the result that Jackson filed a concurrence disassociating himself from the ruling and, by implication, criticizing Black for not addressing the conflict of interest. Jackson also strongly objected to Black’s judicial conduct in Jewell Ridge for another reason. As Jackson later alleged, while Justice Murphy was preparing his opinion, Black urged that the court hand down its decision without waiting for the opinion and dissent. In Jackson’s eyes, the "only apparent reason behind this proposal was to announce the decision in time to influence the contract negotiations during the coal strike" between the coal company and the miners, which was taking place at the time.
Jackson probably regarded Black’s conduct as unbecoming of a Supreme Court Justice in another related matter. On April 3, 1945, The Southern Conference for Human Welfare held a dinner, at which it honored Justice Black as the 1945 recipient of the Thomas Jefferson Award. Fred M. Vinson, interestingly, spoke at the dinner. While Jackson declined an invitation to the event, citing a conflict arising out of the fact that a number of leading sponsors of the dinner were then litigants before the Supreme Court, Black attended the dinner and received his award. Crampton Harris, counsel in two pending cases, Jewell Ridge and CIO v. McAdory (1945), was one of the sponsors.
Jackson would later take these grievances public in two public cables from Nuremberg. Jackson had informally been promised the Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and FDR was no longer alive. President Harry S. Truman was faced with two factions, one recommending Jackson for the seat, the other advocating Hugo Black. In an attempt to avoid controversy, Truman appointed Fred M. Vinson. Jackson blamed machinations by Black for his being passed over for the seat and publicly exposed some of Black's controversial behavior and feuding within the Court. The controversy was heavily covered in the press and cast the New Deal Court in a negative light and had the unfortunate effect of tarnishing Jackson's reputation in the years that followed.
On June 8 1946, Jackson sent a cable to President Truman. Jackson’s cable to Truman began with an insincere offer of congratulations to the President for his appointment of Vinson. But, the cable then quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, that Truman had appointed Fred Vinson in part to avert a resignation on the part of Justice Black. Rumors had been circulating in Washington that Black would resign in the event that Truman chose Jackson as Chief Justice Stone’s successor. "I would be loathe to believe that you would concede to any man a veto over court appointments". Jackson closed his cable by stating that he could not continue his service as an Associate Justice under Vinson if an associate "had something on [him]", which would disqualify him from serving, or if he, Truman, regarded Jackson’s opinion in the Jewell Ridge case as a "gratuitous insult" to Justice Black.
After receiving a response from Truman in which he denied having given consideration to, or having even heard of, the rumor of Black’s threatened resignation, Jackson rashly fired off a second cable to Congress on June 10. This cable stated Jackson's reasons for his belief that Justice Black faced a conflict of interest in Jewell Ridge, from which he wrongfully, at least, in Jackson's eyes, did not recuse himself, and ended with Jackson's threat that if such a practice "is ever repeated while I am on the bench I will make my Jewell Ridge opinion look like a letter of recommendation by comparison".
In 1919, the Supreme Court decided Schenck v. United States. In Schenk, the petitioners, member of the Socialist Party, were convicted of violating the Espionage Act of 1917 for printing and distributing circulars asserting that American citizens had a right to oppose the draft during World War I because, among other things, it violated the United States Constitution. The Schenck Court promulgated the clear and present danger test which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been violated. Justice Holmes, writing for a unanimous court, affirmed the convictions of the lower court positing:
“We admit that in many places and in ordinary time the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The question in every case is whether words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”For more on the Clear and Present Danger Test, see Erwin Chemerinsky, Constitutional Law: Principles and Policies, 957 (Aspen 2ed. 2002) (the clear and present danger test appears to have three analytical elements: (1) probability of harm, (2) temporality of harm, and (3) degree of harm).
On the effect Communists historically had on foreign countries, Jackson analyzed their effect on Czechoslovakia. In Czechoslovakia, a Communists organization disguised as a competing political faction secretly established its roots in key control positions “of police and information services”. During a period of national crisis a clandestine Communist organization appeared and successfully overthrew the Czechoslovakian government. Establishing control of mass communication and industry, the Communist organization’s rule was one of “oppression and terror”. Ironically, as Jackson points out, the Communist organization suppressed the very freedoms which made its conspiracy possible.
On the nature of Communists, Jackson characterizes them as an extraordinarily dedicated and highly selective group disciplined and indoctrinated by Communist policy. The goal of Party members is to secretly infiltrate key positions of government, industry, and unions and to leverage their power once in such positions. Jackson goes on to say that although “Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder …” they “advocate force only when prudent” which “may never be necessary, because infiltration and deception may be enough.”
On the problems with applying the Test in Dennis, Jackson deems significant that the Test was authored “before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties.” Jackson believed that the application of the test should be limited to cases bearing strong enough likeness to those for which it was originally crafted – i.e. “criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag …” Expressing strong concern that the expansive construction the Court had recently given the Test in Bridges v. State of California, Jackson asserted that the Test provided Communists with “unprecedented immunities” while “Government is captive in a judge-made verbal trap”. Jackson goes on to describe the application of the Test to Communists when determining the constitutionality of the Smith Act facially or as applied as one of “apprais[ing] imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians”
Jackson concludes his First Amendment analysis in Dennis by asserting that:
“The authors of the clear and present danger test never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.”
Jackson’s hardened stance on the First Amendment in Dennis may be attributed to strong anticommunist sentiment which had a grip on Americans during the time of the decision. In William Wiecek’s article discussing the history of anticommunism in the United States, Wiecek’s asserts that:
“[T]he manufactured image of the domestic Communist, cultivated and propagated by [[J. Edgar Hoover|[J. Edgar] Hoover]], the Catholic Church, the American Legion, and political opportunists, made of Communists something less than full humans, full citizens, fully rights-endowed. Even sophisticated jurists like … Robert Jackson were captives of that image, anesthetizing [his] sensitivity to deprivation of rights.... In Dennis and other Communist cases between 1950 and 1956, the Supreme Court overcame the problem of facts not supporting the results it was determined to reach by accepting a generic ‘proof’ of Communism’s seditious nature. Disregarding all evidence of both the Party’s and individual members’ renunciation of violence, the Court substituted literary evidence from outdated classics of Marxism-Leninism, most written by Europeans of an earlier era, and refused to consider whether the living people before them actually subscribed to those doctrines…”
For more on the evolution of anticommunism in the United States leading up to the Dennis decision, see generally William M. Wiecek, The Legal Foundation of Domestic Anticommunism: The Background of Dennis v. United States, 2001 Sup. Ct. Rev. 375, 429 (2001).
The ultimate views of Justice Jackson about Brown can be found in his 1954 unpublished draft concurrence. The “Memorandum by Mr. Justice Jackson, March 15, 1954”, is publicly available with Jackson’s papers in the Library of Congress and did not become publicly available until after Rehnquist’s 1986 hearing for Chief Justice of the United States. Jackson’s draft concurrence in Brown, divided into four parts, shows how he struggled with how to write an effective opinion to strike down segregation. In Part 1 of Jackson’s draft concurrence in Brown, he wrote that he went to school where “Negro pupils were very few” and that he was “predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had.” Despite his own opinions regarding desegregation, Jackson acknowledged the inability of the Court to "eradicate" the "fears, prides and prejudices" that made segregation an important social practice in the South. Jackson thus concluded that the Northerners on the court should be sensitive to the conditions that brought segregation to the South.
In Part 2 of the draft memorandum, Justice Jackson described the legal framework for forbidding segregation in “DOES EXISTING LAW CONDEMN SEGREGATION?”. Jackson notes the difficulty for the court that was "supposed not to make new law but only to declare existing law," to overturn a decision of such longevity as Plessy. Looking at the doctrine of original intent with regard to the Fourteenth Amendment, Justice Jackson found no evidence that segregation was prohibited, particularly since states that ratified the Fourteenth Amendment had segregated schools at the time. Jackson concluded, "I simply cannot find in the conventional material of constitutional interpretation any justification for saying" that segregated schools violated the Fourteenth Amendment.
In Part 3 of the draft memorandum entitled “ENFORCEMENT POWER LIMITS” describes enforcement by Congress of the Fourteenth Amendment. Jackson addressed the possibility of leaving enforcement to Congress, particularly because the “courts have no power to enforce general declarations of law." Jackson noted that while segregation was already fading in some states, it would be difficult to overcome in those states where segregation was firmly established. While Jackson recognized the difficulties in the Supreme Court enforcing its judgment, he did not want the task to be left to the lower courts as suggested by the Government. Jackson concluded that the court must act because “our representative system has failed” and even though this “premise is not a sound basis for judicial action."
Finally, in Part 4 of the draft memorandum “CHANGED CONDITIONS” Jackson began by stating that prior to Brown, segregation was legal. According to Jackson, the premise for overruling Plessy was the now erroneous "factual assumption" that "there were differences between the Negro and the white races, viewed as a whole." The draft asserted that the "spectacular" progress of African-Americans, under adverse circumstances, "enabled [them] to outgrow the system and to overcome the presumptions on which it was based." Jackson emphasized that the changed conditions along with the importance of a public education required the court to strike down separate but equal in public education. While Jackson could not justify the decision in Brown in law, he did so on the basis of a political and social imperative. It is unknown if Jackson ever intended to publish this concurrence.
Justice Jackson was in the hospital from March 30 to May 17, 1954. It is reported that Chief Justice Warren visited Jackson in the hospital several times and discussed both Jackson’s draft opinion and Warren’s drafts. One suggestion that Warren took from Jackson was adding “Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world.” This quote is tied to the arguments in Part 4 of Jackson’s draft opinion. On May 17, 1954, Jackson went to the Court from the hospital so he could be there the day the Brown decision was handed down. When the Brown decision was handed down, a full court was present to emphasize the unanimity of the decision. Robert H. Jackson died on October 8, 1954 and so there was not enough time between Brown and the death of Jackson to fully explore his views on desegregation.
The following excerpt of the Nuremberg Trials gives a sense of the exchanges:
MR. JUSTICE JACKSON: Well, those preparations were preparations for armed occupation of the Rhineland, were they not?
GOERING: No, that is altogether wrong. If Germany had become involved in a war, no matter from which side, let us assume from the East, then mobilization measures would have had to be carried out for security reasons throughout the Reich, in this event even in the demilitarized Rhineland; but not for the purpose of occupation, of liberating the Rhineland.
MR. JUSTICE JACKSON: You mean the preparations were not military preparations?
GOERING: Those were good general preparations for mobilization, such as every country makes, and not for the purpose of the occupation of the Rhineland.
MR. JUSTICE JACKSON: But were of a character which had to be kept entirely secret from foreign powers?
GOERING: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.
MR. JUSTICE JACKSON: Well, I respectfully submit to the Tribunal that this witness is not being responsive, and has not been in his examination, and that it is . . .
[The defendant interposed a few words which were not recorded.]
It is perfectly futile to spend our time if we cannot have responsiveanswers to our questions.
[The defendant interposed a few words which were not recorded.]
We can strike these things out. I do not want to spend time doing that, but this witness, it seems to me, is adopting, and has adopted in the witness box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul, nor dead ones either. I respectfully submit that the witness be instructed to make notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his counsel to bring out.
THE PRESIDENT: I have already laid down the general rule which is binding upon this defendant as upon other witnesses. Perhaps we had better adjourn now at this state.
Jackson was played by Alec Baldwin in the 2000 TNT television film Nuremberg, based on the novel Nuremberg: Infamy on Trial, by Joseph E. Persico, which recounted the trial at which Jackson served as chief U.S. prosecutor.
An extensive collection of Jackson's personal and judicial papers is archived at the Manuscript Division of the Library of Congress and open for research. Smaller collections are available at several other repositories.