About Robert Houghwot Jackson
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. A "county-seat lawyer", he remains the last Supreme Court justice appointed who did not graduate from any law school (though Justice Stanley Reed who served from 1938–1957 was the last such justice to serve on the court), although he did attend Albany Law School in Albany, New York for one year. He is remembered for his famous advice, that "...any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." and for his aphorism describing the Supreme Court, "We are not final because we are infallible, we are infallible because we are final." Many lawyers revere Justice Jackson as one of the best writers on the court, and one of the most committed to due process protections from overreaching federal agencies.
Born in Spring Creek Township, Warren County, Pennsylvania and raised in Frewsburg, New York, Jackson graduated from Frewsburg High School in 1910 and spent the next year as a post-graduate student attending Jamestown High School in Jamestown, New York. Jackson did not attend college as an undergraduate. At age 18, he went to work as an apprentice in a Jamestown law office, then attended Albany Law School, in Albany, New York, where he completed the first year of the two-year program. During the summer of 1912, Jackson returned to Jamestown. He apprenticed again for the next year. He passed the New York bar examination in 1913 at the age of 21 and set up practice in Jamestown, New York. Over the next 20 years, he became a very successful lawyer in New York State and, through bar association activities, a rising young lawyer nationally.
U.S. Federal appointments and politics, 1934–1940
Jackson was appointed to federal office by President Franklin Delano Roosevelt in 1934. Jackson served initially as general counsel of the U.S. Treasury Department's Bureau of Internal Revenue (today's Internal Revenue Service). In 1936, Jackson became Assistant Attorney General heading the Tax Division of the Department of Justice, and in 1937 he became Assistant Attorney General heading the Antitrust Division. In 1938, Jackson became United States Solicitor General, serving until January 1940 as the government's chief advocate before the Supreme Court.
Jackson was a supporter of the New Deal, litigating against corporations and utilities 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.
President Roosevelt regarded him as a potential heir, and in 1937 considered having him run for Governor of New York. Jackson was a fellow Democrat, fellow country squire, and fellow Dutch-American.
U.S. Attorney General, 1940–1941
Jackson was appointed Attorney General by Roosevelt in 1940, replacing Frank Murphy. As Attorney General, Jackson supported a bill introduced by Sam Hobbs that would have legalized wiretapping by the Federal Bureau of Investigation (FBI), or any other government agency, if it was suspected that a felony was occurring. The bill was opposed by Federal Communications Commission (FCC) chairman James Lawrence Fly, and did not pass.
When Harlan Fiske Stone replaced the retiring Charles Evans Hughes as Chief Justice in 1941, Roosevelt appointed Jackson to the resulting vacant Associate's seat.
U.S. Supreme Court, 1941–1954
In 1943, Jackson wrote the majority opinion in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which overturned a public school regulation making it mandatory to salute the flag and imposing penalties of expulsion and prosecution upon students who failed to comply. Jackson's stirring language in Barnette concerning individual rights is widely quoted. Jackson's concurring opinion in 1952's Youngstown Sheet & Tube Co. v. Sawyer (forbidding President Harry Truman's seizure of steel mills during the Korean War to avert a strike), where Jackson formulated a three-tier test for evaluating claims of presidential power, remains one of the most widely cited opinions in Supreme Court history (it was quoted repeatedly by Supreme Court nominees John Roberts and Samuel Alito during their confirmation hearings).
Feud with Black
Justices Jackson and Hugo Black had profound professional and personal disagreements dating back to October 1941, the first term in which they served together on the Supreme Court. According to Dennis Hutchinson, editor of The Supreme Court Review, Jackson objected to Black’s practice of importing his personal preferences into his jurisprudence. Hutchinson quotes Jackson as having remarked, “With few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties.” While Hutchinson points out that Jackson objected to Black's style of jurisprudence in such cases as Minersville v. Gobitis (1940) and United States v. Bethlehem Steel (1942), Black’s involvement in the Jewell Ridge case struck Jackson as especially injudicious.
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 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."
Jackson and Dennis v. United States
The "clear and present danger" test
In order to understand Jackson’s concurrence in Dennis v. United States, a basic understanding of the origin of the clear and present danger test is helpful.
In 1919, the Supreme Court decided Schenck v. United States. In Schenck, the petitioners, members 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 decision 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 committed. Justice Holmes, writing for a unanimous court, affirmed the convictions of the lower court positing:
“We admit that, in many places and in ordinary times, 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 the words used are 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).
Dennis v. United States
In 1951, the Supreme Court decided Dennis v. United States. In Dennis, the petitioners were zealous Communists who organized for the purpose of teaching the “Marxist-Leninist Doctrine”. The principal texts used to teach the doctrine were: History of the Communist Party of the Soviet Union; Foundations of Leninism by Stalin; The Communist Manifesto by Marx and Engels; and State and Revolution by Lenin. The Petitioners were convicted for violating §2 and §3 of the Smith Act which, among other things, made it unlawful to conspire to organize a group which advocates the overthrow of the United States government by force of violence. The issue before the Supreme Court was “[w]hether either §2 or §3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights…”
In Dennis, Jackson concludes that the clear and present danger test (the “Test”) should not be applied. To this end, Jackson analyzed: the effect communism had outside the United States; the nature of communists; and the problems with applying the Test. Jackson’s analysis can be summarized as follows:
On the effect communists historically had on foreign countries, Jackson analyzed their effect on Czechoslovakia. In Czechoslovakia, a communist 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 Jehovah Witness 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.”
 ConclusionIn the end the Court applied its own version of the clear and present danger test in Dennis essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine. Jackson, however, as one commentator put it, expressed in Dennis (at least with regards to Communists) that “when used as part of a conspiracy to act illegally, speech loses its First Amendment protection.”
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, 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).
Justice Jackson and Brown v. Board of Education
One of Jackson's law clerks during 1952–53, William H. Rehnquist, was appointed to the Supreme Court in 1971 and became Chief Justice in 1986. In December 1971, after Rehnquist's nomination had been approved by the Senate Judiciary Committee and was pending before the full Senate, a 1952 memorandum came to light that he had written as Jackson's law clerk in connection with the landmark case, Brown v. Board of Education that argued in favor of affirming the separate-but-equal doctrine of Plessy v. Ferguson. Rehnquist wrote a brief letter attributing the views to Jackson and was confirmed. In his 1986 hearing he was questioned about the matter. His explanation of the memorandum was disputed in both 1971 and 1986 by Jackson's former secretary, and scholars have questioned its plausibility. However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind.
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 titled “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.
Justice Jackson and procedural due process
Justice Jackson was one of the two great defenders (along with Justice Frankfurter) of procedural due process, for the rule of law that protects members of the public from overreaching by government agencies. One of his hymns to due process is often quoted:
Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.
If it be conceded that in some way [that the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
International Military Tribunal, 1945–1946
In 1945, President Truman appointed Jackson, who took a leave of absence from the Supreme Court, to serve as U.S. chief of counsel for the prosecution of Nazi war criminals. He helped draft the London Charter of the International Military Tribunal, which created the legal basis for the Nuremberg Trials. He then served in Nuremberg, Germany, as United States chief prosecutor at the international Nuremberg trial. Jackson pursued his prosecutorial role with a great deal of vigor (for instance, referring in arguments to Hermann Göring as being "half militarist, half gangster"). His opening and closing arguments before the Nuremberg court are widely considered among the best speeches of the 20th century. In the words of defendant Albert Speer:
“ The trial began with the grand, devastating opening address by the chief American prosecutor, Justice Robert H. Jackson. But I took comfort from one sentence in it which accused the defendants of guilt for the regime's crimes, but not the German people.”
However, his cross-examination skills were generally considered weak, and it was in fact British prosecutor David Maxwell-Fyfe who got the better of Göring in cross-examination rather than Jackson, who was rebuked by the Tribunal for losing his temper and being repeatedly baited by Göring during the proceedings.
Jackson died in Washington, D.C., at the age of 62. After funeral services in Washington's National Cathedral, and later in Jamestown's St. Luke's Church, he was interred near his boyhood home in Frewsburg, New York.
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.
Portrayal in popular culture
Robert H. Jackson has been portrayed by the following actors in film, television and theater productions;
Jackson is a minor character in the 1991 telefilm Separate But Equal.
Alec Baldwin in the 2000 Canadian/U.S. T.V. production Nuremberg
Edmund Dehn in the 2005 German T.V. miniseries Speer und Er
Colin Stinton in the 2006 British television docudrama Nuremberg: Nazis on Trial