Mr. Justice Jackson and the Supreme Court

• Date: 01 September 1948
• DOI: 10.1177/106591294800100302
• Published date: 01 September 1948
• Subject Matter: Articles

MR. JUSTICE JACKSON AND THE SUPREME COURT
by
VINCENT M. BARNETT, JR.
Williams College
By the summer of 1941, when Mr. Justice Jackson was appointed to the
bench, the Supreme Court of the United States had virtually completed the
transition period upon which it had entered in the spring of 1937, both in
terms of personal composition and in terms of major shifts in constitutional
doctrine. Seven new appointees had basically changed the complexion of
the Court and had reduced its average age from seventy-two at the begin-
ning of the Court reform struggle in 1937 to slightly less than fifty-six as the
tribunal met for its 1941-42 session. In terms of constitutional doctrines
announced or foreshadowed, most of the changes in direction had also been
achieved by the beginning of that sitting. The commerce clause had been
restored to full vigor, the taxing and spending power had been broadly in-
terpreted, &dquo;liberty of contract&dquo; as a part of the two due process clauses had
been reduced to very narrow scope if not extinction, &dquo;dual federalism&dquo; had
received its death-blow, in short, most of the constitutional barriers to
attempts on the part of national and state governments to cope with social
and economic problems had been lowered or removed by distinguishing or
reversing the restrictive precedents out of which the &dquo;Court fight of 1937&dquo;
had arisen. The Court had already taken the decisive steps. The question
was no longer whether the so-called &dquo;liberal&dquo; or the so-called &dquo;conservative&dquo;
view, in pre-1937 terms, would prevail in subsequent decisions of the Court.
It was rather how the dominant &dquo;liberal&dquo; view would be applied in work-
ing out the implications already apparent in the decisions of the transition
period from 1937 to 1941.
It was clear that the answer to this question depended to a considerable
degree on the personalities and constitutional views of the recently appointed
judges. The newest among these, as the 1941 term opened, was Robert H.
Jackson. It is the purpose of this paper to examine the background and
constitutional views of Mr. Justice Jackson at the time of his appointment;
to analyze the character of the constitutional doctrines which he has ex-
pressed or supported; and to assess the nature of his impact on a tribunal
engaged in the process of reformulating its theory as to its proper function
in a constitutional democracy.’
1
I am not concerned in this paper with his dramatic role as prosecutor at Nuremberg, nor, except as
clues for it may incidentally appear, with his personal feud with Mr. Justice Black. For an
account of the latter, see "Prelude and Feud," in Wesley McCune’s The Nine Young Men
(New York: Harper, 1947).
223

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BACKGROUND AND VIEWS PRIOR TO APPOINTMENT
Robert Houghwout Jackson, comparatively unknown outside New
York state until he went to Washington with the New Deal, rose rapidly to
positions of importance in the federal government. He served as general
counsel of the Bureau of Internal Revenue, as Solicitor General, and as
Attorney General before his nomination to the Supreme Court. Born in
Pennsylvania in 1892, Jackson never received a formal law school degree.
He read law in an attorney’s office and, after a one-year course at Albany
Law School, passed the bar examination and entered private practice in
1913. He soon gained a reputation as a brilliant lawyer at and around
Jamestown, New York. As a member of an old Democratic family, he
pursued an interest in Democratic party affairs in the state. In 1932, he
went to the Democratic national convention as a Roosevelt delegate. After
Roosevelt’s election, he was called to Washington in 1934, leaving a suc-
cessful practice estimated to bring him about $30,000 a year. His first
notable achievement in Washington was the conviction of Andrew Mellon
for income tax evasion in opposition to some of the leading lawyers in the
country. He became Solicitor General when Stanley Reed was elevated
from that post to the Supreme Court. As Solicitor General he argued forty-
four cases before the Supreme Court, winning all but six. A short-lived
boom for Jackson for the governorship of New York collapsed, largely
because of a change of Democratic party policy shortly after Jackson’s
well-remembered attacks on &dquo;big business&dquo; in late 1937 and early 1938.
At the beginning of 1940, when Frank Murphy became an Associate Justice
of the Supreme Court, Jackson succeeded him as Attorney General. His
activities in this post were largely in connection with problems growing out
of the war crisis, the most important and controversial among them being
his formal opinion on the destroyers-bases deal with England. On June 12,
1941, he was appointed to the Supreme Court.2
2
Thus Jackson came to the Court an able and brilliant lawyer, a life-
long Democrat, and one of the supporters of the New Deal. His training for
the bench had been one of advocacy and politics rather than one of actual
judicial experience. Evidence of his political, social and legal views at the
time are to be found in his writings and public utterances which afford a
wealth of material for consideration.
One of the most interesting sources of information about Jackson’s
constitutional views is his testimony before the Senate Judiciary Committee
in favor of the President’s Court bill of 1937.3 A too-brief selection will
2
For a very useful treatment of Jackson’s background and political career, see Marquis W. Childs,
"Robert H. Jackson, The Man Who Has Always Been A New Dealer," Forum, Vol. CIII
(March, 1940), 148.
3
Reorganization of the Federal Judiciary, Hearings before the Committee of the Judiciary of the
United States Senate, 75th Cong., 1st sess., on S. 1392. Part I, pp. 37-64. (Washington:
Government Printing Office, 1937). Hereafter cited as Hearings.

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225
have to suffice for present purposes. For example, with regard to Mr.
Justice Black’s attempts to narrow substantially the scope of the Fourteenth
Amendment as applied to economic regulation,4 Jackson’s remarks here
would seem to put him in Black’s camp. Said he:
The fourteenth amendment was ... a clarifying amendment, intended to uproot
the constitutional errors involved in the Dred Scott decision. There is no doubt
that the Congress which submitted and the states which ratified language which
said &dquo;nor shall any State deprive any person of life, liberty, or property without
due process of law,&dquo; thought that they were protecting the civil right to a fair
trial and hearing. The Supreme Court extended the amendment to protect
corporations, although its language includes only persons, and it then extended
it from a guarantee of procedural fairness to prevent the States from enacting
any kind of economic legislation. Thus the fourteenth amendment, far from
clarifying the great constitutional principle of human rights, has brought forth
a crop of new difficulties, and the amendment in the interest of freedom has
brought forth new kinds of oppression.5
In his prepared statement Jackson went flatly on record as thinking
that the Court had been wrong in most of its constitutional interpretations
just prior to 1937. He rejected the amending procedure as a proper solution,
pointing out that amendments could not be expected to &dquo;change a state of
mind hostile to the exertion of governmental powers.&dquo; He continued :.
To offset the effect of the judicial attitude reflected in recent decisions it would
be necessary to amend not only the commerce clause and the due process clause,
but the equal-protection clause, the privilege and immunities clause, the tenth
amendment, the bankruptcy power, and the taxing and spending power.6
s
He noted that each of these clauses had recently been &dquo;so unwarrantably
construed as to call forth indignant dissents from the liberal minority of the
Court,&dquo; and left no doubt that he agreed with the minority.7
7
He attacked
the excessive judicial censorship over the substance of legislation which was
due, he felt, to &dquo;the increasing tendency of the Supreme Court to judge
legislation according to the majority view of the wisdom of the legislation.&dquo;8
Such a view, he said, makes the Court a super-legislature, with a final veto
over legislation-a veto with &dquo;the finality of fate.&dquo;9 This was true with re-
gard to state as well as federal legislation, especially under the expanded
due process concept.~° He added that the Court was disposed to accept
state rights arguments &dquo;only when pleaded by private interests in support
4
For a summary of Black’s views on this point, see Vincent M. Barnett, Jr., "Mr. Justice Black
and the Supreme Court," in Univ. of Chicago Law Review. Vol. VIII (1940), pp. 26-27.
5Hearings, op. cit., p. 42, note 27.
6
Ibid., p. 43.
7
Ibid.
8
Ibid
.,
p. 44.
9
Ibid.
,
p. 45.
10
"State legislation inaugurating conservative reforms has with increasing frequency been set aside
by a majority of the Supreme Court ever since 1920, even though these state reforms did not en-
croach upon the powers of the Federal Government but simply failed in the opinion of a
majority of the Court to come
within the vague contours of the fourteenth amendment. In vain
did Mr. Justice Brandeis in 1924 protest that the Court was assuming ’the exercise of the
powers of a
superlegislature-not the constitutional functions of the judicial review.’
Ibid
.,
p. 46.

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226
of laissez-faire economics to create a ’no man’s land’ beyond the reach of
both Federal and...