Jackson, Robert H. (1892–1954)

Robert H. Jackson served on the Supreme Court from 1941–1954. He made notable contributions to constitutional law, particularly in the areas federalism, free speech, and separation of powers. He was known for his pungent, commonsensical judicial opinions.

Legal Career

By the time he joined the Supreme Court, Jackson had experienced perhaps the broadest background as a practicing lawyer of any Justice in the Court’s history. He had argued cases everywhere from the small city of Jamestown, New York, to the United States Supreme Court. He often described himself as a ‘‘country lawyer,’’ based on his successful practice in Jamestown, where he worked on a broad range of cases. Yet, his later work as a federal official included the most sophisticated areas of legal practice: tax, antitrust, securities law, and constitutional litigation.

Jackson began his legal career at an early age, arguing his first case in court before he was twentyone. In addition to establishing a successful legal practice, he became active in local Democratic politics and developed a connection with then-Governor Franklin Roosevelt. After Roosevelt became president, Jackson became general counsel to the Internal Revenue Service. He then served in several other positions in the executive branch: special counsel to the Treasury Department and to the Securities Exchange Commission, and in the Justice Department as the head of the Tax and Anti-Trust Divisions.

Jackson’s success in these positions and his strong support of Roosevelt brought him to the highest positions in the Justice Department. He became Solicitor General (the government lawyer who argues cases in the Supreme Court) and finally Attorney General. As Solicitor General, he was a strong advocate for the constitutionality of the New Deal, which was only then winning acceptance by the Supreme Court. While Attorney General, he provided important advice to Roosevelt on the eve of World War II. Thus, Jackson’s appointment to the Supreme Court was the culmination of an exceptional legal career.

Even after joining the Supreme Court, Jackson made one final, historic appearance as a lawyer. He took a leave from his position at the Court to lead the U.S. prosecuting team at the Nuremberg war crimes trial. Even before the trial began, he played a leading role in the negotiations that lead to the creation of the tribunal. His opening and closing statements at the trial cogently made the case for punishing the Nazi leaders for war crimes and crimes against humanity He was less successful in crossexamination, particularly of Hermann Goring, who was able to delay the proceedings with long speeches. Today, the Nuremberg trials are commonly considered to be the foundation of modern international human rights law.

Jackson’s most notable contributions to civil liberties involved free speech doctrine and the recurring issue of the President’s wartime powers over citizens.

Jackson and Free Speech

In the midst of World War II, Jackson penned one of the great classics of First Amendment jurisprudence. The issue in Barnette was whether the children of Jehovah’s Witnesses could be expelled from school for refusing to take part in the Pledge of Allegiance and flag salute. Just three years earlier, the Court had soundly rejected a religious freedom claim in a similar case. In Barnette, the Court overruled Gobitis and held compulsory participation in the Pledge to be unconstitutional.

Several passages in Jackson’s opinion have become standard quotations in later free speech cases. For example, in response to the argument that the protection of free speech in such cases was better left to the democratic process, he replied: ‘‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to placed them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’’ He added, ‘‘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 elections.’’ Coming shortly after the Court had withdrawn from protecting property rights under the guise of the due process clause, this passage presaged a new rule for the Court as guardian of civil rights and civil liberties.

The most famous portion of the Barnette opinion, however, comes near the end, where Jackson wrote: ‘‘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.’’ This endorsement of freedom of thought as a foundational constitutional principle has been a favored quotation of later Justices.

In Barnette, Jackson seems to have been motivated in part by a desire to distinguish America from its totalitarian foes. One argument in favor of the pledge requirement was that it was needed to instill national unity. Jackson argued that such efforts were ultimately futile, as shown by ‘‘the fast failing efforts of our present totalitarian enemies.’’ He observed that those who began such an effort often later became its victims. In the end, he said, the effort to unify opinion by force ‘‘achieves only the unanimity of the graveyard.’’

After the war, Jackson often sided with the government in free speech disputes, which he saw as involving threats to public order rather than freedom of thought. In Saia, the majority struck down an ordinance that gave the chief of police complete discretion over granting permits to use loudspeakers. Jackson, however, argued that the defendant had abused his right of free speech by using loudspeakers in a public park, disrupting its use for recreational purposes. Similarly, in Terminiello, Jackson voted to uphold the conviction of an anti-Semitic speaker for disturbing the peace. The majority overturned the conviction because of one of the judge’s instructions to the jury. The judge had told the jury they could convict if speech ‘‘stirred people to anger, invited public dispute, or brought about a conviction of unrest.’’ The majority emphasized that dissent often has such effects. Jackson considered this a hypertechnical, if not contrived, basis for reversing the conviction, especially because the defendant’s lawyers had never objected to the instruction. He saw the case instead as involving a replay of prewar street battles in Europe, with a rabid speaker inciting a crowd to violence while equally extremist opponents outside threatened to riot.

The majority opinions in Saia and Terminello are now part of the First Amendment canon, and Jackson’s dissents seem at odds with his rousing defense of free speech in Barnette. One reason for the disparity between Jackson’s views and current law is that the Court generally considers attacks against a statute on its face, whereas Jackson’s concern was whether the particular speaker’s rights had been invaded. Jackson was also probably influenced by his experience at Nuremberg, which had impressed him with the potential for extremist groups like the Nazis to take abuse the rights of speech and assembly to destroy public order and seize power.

Civil Liberties and Executive Power

Jackson’s other major opinions regarding civil liberties involved executive powers during wartime. In Korematsu, he argued that courts should refuse to endorse the Japanese internment, lest they be seen as approving of racial discrimination. He feared that a judicial endorsement of the program would ‘‘for all time’’ validate the ‘‘principle of racial discrimination in criminal procedure.’’ Paradoxically, however, he also thought the courts would be powerless to interfere against purely military enforcement. ‘‘If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint.’’ In terms of civil liberties, Jackson’s opinion was a mixed blessing. It forthrightly rejected the constitutionality of the internment but also promised to give the military a blank check to act on its own during wartime.

A clearer message emerged from what is probably Jackson’s most influential opinion. In the Steel Seizure case, Jackson joined the majority in condemning President Truman’s order taking control of the nation’s steel mills during the Korean War. Jackson’s position was especially noteworthy because of his wealth of experience in the executive branch and his strong support for Presidential initiatives under Roosevelt. But he thought that Truman had gone overboard in claiming executive power. He tartly observed that the Constitution makes the President commander in chief of the military, not of ‘‘the country, its industries and its inhabitants.’’ In the course of his opinion, Jackson developed a nuanced analysis of the exercise of presidential power. Although Jackson’s was only a concurring opinion, his analysis has had much more impact on the law than the Justice Black’s brief majority opinion. The importance of Jackson’s approach became clear in the early twenty- first century, when the courts confronted antiterrorist measures that had been issued on the basis of inherent executive authority.

DANIEL A. FARBER

References and Further Readings

• Desmond, Charles, et al. Mr. Justice Jackson: Four Lectures in his Honor. New York: Columbia University Press, 1969.
• Gerhart, Eugene. America’s Advocate. Indianapolis: Bobbs- Merrill Co., 1958.
• Hutchinson, Dennis, The Achilles Heel of the Constitution: Justice Jackson and the Japanese Exclusion Cases, Supreme Court Review (2002): 455.
• Jaffe, Louis, Mr. Justice Jackson, Harvard Law Review 68 (April 1955): 940.

Cases and Statutes Cited

• Korematsu v. United States, 323 U.S. 214 (1944)
• Minersville School District v. Gobitis, 310 U.S. 586 (1940)
• Saia v. People of State of New York, 334 U.S. 558 (1948)
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
• Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case, 343 U.S. 579 (1952)

See also Flag Salute Cases; Freedom of Speech: Modern Period (1917–Present)