Robert H. Jackson: head of state?

• Author: Prettyman, E. Barrett, Jr.
• Position: Testimonial

Robert H. Jackson would have made an interesting President. (1) Some might disagree--principally because of his disposition to work alone on many matters (2)--but F.D.R. himself had a secretive side to him, and it did not hinder his effectiveness. Jackson would have been a strong head of state because his affable personality would have made him the type of leader that subordinates would have been eager to emulate and because he was a thoroughly practical man. He would have understood all the nuances of the problems he faced and the solutions that would or would not have worked to solve them.

How many of our Presidents have had the prior experience of working as a small-town lawyer and then at every level of the Federal Government, from the I.R.S. and the Antitrust Division up through the Solicitor General's office and on to the Attorney Generalship--as well as the enormous responsibility of being lead prosecutor at the Nuremberg trials? There was nothing speculative or theoretical about this background.

One example near the very end of Jackson's life demonstrates his practical nature. While the Supreme Court Justices were still at odds with one another over how to solve the conundrum presented by Brown v. Board of Education, and before the new Chief Justice, Earl Warren, had drafted what would become a unanimous opinion for the Court, Jackson began writing his own concurring opinion. I am not suggesting here that what he wrote should have become the majority opinion--far from it (3)--but I do believe that what Jackson was worrying about in that opinion demonstrates how practical and tough-minded he was. Among his concerns: 1) What kind of a decree could the Court write that would not leave the front-line trial judges--particularly in the deep South--with little or no guidance, and thus at the mercy of their disapproving neighbors? 2) In light of Congress's many responsibilities under the Constitution, why was it playing no role in this weighty, nation-wide problem? 3) Whom would the Court seek to blame for the segregation that had built up over so long a period--the lower courts, school boards, the South--when it had been the Supreme Court itself that had approved the defining principle of separate but allegedly equal educational facilities? 4) In light of the Framers' clear intent not to do away with school segregation, what rule of law, apart from pure judicial fiat, (4) was the Court to rely upon in overruling Plessy v. Ferguson and...