A Judicial Enigma

Robert Jackson was a key figure in mid-twentieth-century American liberalism. He rose rapidly up the cursus honorum of the New Deal. In the period between 1934 and 1941, Roosevelt appointed him Assistant General Counsel to the IRS, then Assistant Attorney General for the IRS. He then worked for the Justice Department’s Antitrust Division before becoming Solicitor General, Attorney General, and finally Associate Justice on the Supreme Court, serving from 1941 to 1954. Jackson was the last Supreme Court Justice who never attended college, nor had a law degree (he spent one year in law school and otherwise “read law,” learning the trade as Lincoln had). He took a leave of absence to be the lead prosecutor at the Nuremberg war crimes trial. A zealous liberal in his political career, he became something of a conservative on the Court. He is usually classed as among the best prose stylists in Court history (with Oliver Wendell Holmes Jr.). Yet he has had only one biography until now—Eugene C. Gerhart’s America’s Advocate (1958), though John Q. Barrett has made a career collecting and posting material on Jackson. Something enigmatic about Jackson keeps him peripheral.

Now at least he has a heavy-hitting biographer in G. Edward White, whose Robert H. Jackson: A Life in Judgment was just released this October. White is professor of law at the University of Virginia and the foremost judicial biographer of our day, as the author of the classic American Judicial Tradition, a serial biographical overview of two centuries of American jurisprudence. He has also written biographies of John Marshall, Earl Warren (for whom he clerked), and Alger Hiss, as well as the very fine Creating the National Pastime, a history of baseball from 1903 to 1953. But White concedes that “I have been struck by how difficult it is to encapsulate [Jackson] other than in contradictions.” This is probably because White is too much a biographer and not enough of a historian, getting sucked into the psychological and personal, and not analyzing political and constitutional ideas.

The childhood, early-life, and pre-career background is usually the worst chapter in any biography. White’s is probably the strongest part of his book, even though he sometimes falls into the trap of giving too much detail, becoming quotidian and dull. (For instance, we do not need the details of his sister Mary’s experience at Smith College, including her C-minus in Zoology.) Jackson grew up an old-stock Protestant agrarian on the border of Pennsylvania and New York—the US-6 route, still one of the least densely-populated parts of the country east of the Mississippi. He ended up in Jamestown, New York (also home of Lucille Ball). His people were Jeffersonian democrats, with a small-town ethos of individualism as well as familism and community. Jackson came to believe that the twentieth century destroyed this idyllic world, but he seems never to have considered that the progressive and New Deal policies that he did so much to promote may have contributed to this destruction. 

When we get to Jackson’s public and political career, White tends to downplay his legal and constitutional controversies. His criminal and civil suits regarding Andrew Mellon’s taxes, for example, are often seen as harassing and vindictive. Early in World War II, Jackson provided Franklin Delano Roosevelt with a legal fig-leaf to cover the apparently illegal “destroyers-for-bases” deal, in which America gave Britain some older-model Naval destroyers in exchange for a rent-free lease on several naval and air bases in several territories in the Atlantic. It was a serious stretch of executive authority; Princeton’s Edward S. Corwin, perhaps the greatest authority on the Constitution in the twentieth century, called the deal “an endorsement of unrestrained autocracy in the field of our foreign relations … no such dangerous opinion was ever before penned by an Attorney General.” Roosevelt himself told Jackson that he needed him to draw the political flak. White mostly skirts this thorny episode. 

White also minimizes the legal problems of Jackson’s Nuremberg prosecutions. Though he does quote Chief Justice Harlan Fiske Stone’s description of Nuremberg as “a high-grade lynching,” White doesn’t even mention the travesty of the participation of the Soviet Union, whose crimes against humanity were on a par with the Nazis’. It is hard to take seriously Jackson’s claim that the trials vindicated an “international rule of law.”

Jackson was also a key supporter of Roosevelt’s scheme to “pack” the Court in 1937. His 1941 book, The Struggle for Judicial Supremacy, argued (at the president’s prompting) that Roosevelt’s plan exposed the Court as a political institution, and succeeded in inducing the Court to change its doctrine and accept the New Deal, ostensibly the “switch in time that saved nine.” As Jackson put it, the fence-sitting conservative Justices (presumably Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts) “subdued the rebellion against their constitutional dogma by joining it.” White disputes this at great length. White is an “internalist,” meaning he believes that the Court changed for legal and not political reasons, rooted in earlier developments in constitutional doctrine. Historians, political scientists, and law professors have been arguing over this for years. White is both a history PhD and a JD, but he should have done more to present the evidence from the “externalist” side. Like Jackson, he is on this issue more advocate than judge.

Jackson was at his best as an advocate and was happiest in his role as solicitor general and Nuremberg prosecutor. Outside of those offices, he often evinced Hamlet-like indecisiveness. Though he was one of Roosevelt’s favorites (and that esteem was more than reciprocated), the president ultimately dropped him from his short list of possible successors in 1940 because he wasn’t partisan enough. (In the end, nobody was, so Roosevelt anointed himself for a third term.) Instead, Jackson was put on the Court in 1941. His was the last of the seven seats that Roosevelt filled. Jackson himself said, “If you’re going to pack the Court, you’ve really got to pack it.” When he signed Jackson’s commission, the president boasted, “It may not be proper to announce it, but today the Court is full.”

Jackson’s unhappy career on the Court resulted from his inability to fuse or completely separate the roles of advocate and judge. Though brought up in the world of progressive “Legal Realism,” which conflated law and politics, he retained some sense of the classical belief that law could be separated from politics—the “natural law” belief that law was discovered, not made, which White has called the “oracular” view of judging. White notes that before he was on the Court, Jackson was “not a committed ideological partisan in the same manner as many who served with him in the Roosevelt administration … but he was a team player.” He was as political as Roosevelt needed him to be, ardently denouncing New Deal opponents as plutocrats and fascists. But he knew that the Court was different, and many of his Roosevelt-appointed fellow Justices did not.

Part of the reason for Jackson’s unhappiness on the Court came from the relative insignificance of the judicial office in wartime. Jackson joined the Court on the eve of Pearl Harbor. White pithily points out that on “the Monday after Pearl Harbor, the Court heard two cases raising the question of whether members of country clubs owed taxes on their green fees.” He asked Roosevelt if he could be of more use off the Court. Justice James Byrnes resigned in 1942 to become the director of Economic Stabilization and then of the Office of War Mobilization; he was commonly known as the “Assistant President.” But Roosevelt kept Jackson on the bench.

There, he was shocked to see how overtly the Roosevelt appointees were willing to politicize constitutional law. He sided with Felix Frankfurter, an icon and teacher of progressive lawyers who became quite restrained and often conservative on the bench. They clashed with the four justices that Frankfurter called “the Axis”—Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge. (White’s American Judicial Tradition chapter on Douglas was titled “the anti-judge.”) These conflicts became bitter and personal, often dramatized as front-page news. In what became known as the “Jackson-Black Feud,” Jackson was particularly aghast that Black did not recuse himself in a case argued by his former law partner and believed that Black manipulated decisions to benefit his own favored interest groups. He also believed that Black and Douglas had conspired to deny him the chief justiceship, threatening to resign if President Truman appointed Jackson. (Though, typically, Jackson also denied that he really wanted the job.) He sent a long telegram from Nuremberg denouncing Black, which ended up in the newspapers. “Only once in the history of the Supreme Court has one of its members publicly accused another of unethical behavior and manipulating the decision-making process for personal ends,” one historian wrote. Today’s “Barrett-Jackson Feud” looks like a clawless cat fight in comparison. Truman told his wife, “It sure was a lucky thing I didn’t make Jackson Chief Justice. He has surely gone haywire.” Truman regarded Roosevelt’s judicial selections as “somewhat disgraceful.”

Perhaps the best illustration of Jackson’s judicial agonizing is in the desegregation cases (Brown v. Board of Education) in 1954. This was a genuinely hard case, for Jackson wanted to do the right thing but struggled to find adequate legal grounds. He prepared a concurring opinion, but in the end went along with the unanimous opinion written by Earl Warren. “Our problem is how to make a judicial decision out of a political conclusion,” he wrote. He could go along with a political decision, but wanted the Court to be candid about what it was doing. He pondered a decision in which the Court condemned segregation as wrong but not unconstitutional, leaving it to Congress to act, presumably under the interstate commerce power. (Jackson had long ago given Congress carte blanche, saying that “in order to be unconstitutional … the relation between interstate commerce and the regulated activity would have to be so absurd that it would be laughed out of Congress.”) He finally worked out a decision along “living Constitution” lines, stressing the great progress that black Americans had made since Reconstruction. They were no longer so inferior a race as to justify segregation. But he set his draft opinion aside and joined Warren’s unanimous decision.

As White notes, Jackson grew up in the era of Legal Realism, which viewed law as an instrument of power, with no distinction between law and politics. But he did not go as far as “the Axis.” Jackson fell between the stools of classical, nineteenth-century jurisprudence (often called “formalism”) and modern realism. White often describes Jackson’s judicial approach as “pragmatic,” and notes that he particularly admired William James, author of the famous essay “Pragmatism.” Pragmatism, James explained, defined the true as “whatever works.” When this approach enters the legal realm, it is easy to see how it could degenerate into “If it feels just, rule it.” This was what the realist Benjamin Cardozo called gefühlsjurisprudenz, “a jurisprudence of sentiment or feeling.” It surfaced among the Axis (especially in Frank Murphy), but the deaths of Murphy and Rutledge in 1949 delayed its full manifestation until the Warren Court, which began just when Jackson left the stage.

Antonin Scalia described himself as a “faint-hearted originalist.” Jackson could be called a faint-hearted realist. Though he was taken aback at the full-throated realism of Hugo Black or William O. Douglas, he had no alternative to fall back on, since his generation had been disconnected from the political theory and jurisprudence of the American Founders. He was unable to find a way back to the natural law tradition, as did some prominent legal progressives like Roscoe Pound, Robert M. Hutchins, and even Jerome Frank. This unsure grounding may account for his difficulty in moving from the job of advocate to that of judge. He was aware of the problem. “Something does happen to a man when he puts on a judicial robe,” he told a biographer, “and I think it ought to. The change is very great and requires a psychological change within a man to get into an attitude of deciding other people’s controversies, instead of waging them. It really calls for quite a changed attitude. Some never make it—I am not sure I have.”

White wrote about Jackson over forty years ago in The American Judicial Tradition. The chapter was titled “The Dilemmas of Robert Jackson.” Jackson seems as enigmatic now as he did then. This is perhaps because White is more biographer than critical historian. Like many biographers, he has been captured by his subject. Jackson’s first biographer, Eugene Gerhart, was similarly captured. White’s focus on the personal and psychological (was Jackson having an affair with his secretary and, if so, why?) could have been profitably replaced by more attention to other historians’ evaluations of his prominent and controversial public acts.

It would be hard to write on twentieth-century American political and constitutional history without Jackson playing a role and making several appearances. But he remains poor material for a stand-alone biography.