Write On, 0118 VTBJ, Summer 2018-#31
| Author | Brian Porto, Esq. |
| Position | Vol. 44 2 Pg. 31 |
The Rhetorical Elegance of Robert Jackson
Brian Porto, Esq.
Introduction
Robert H. Jackson, the seventh of Franklin Roosevelt’s eight appointees to the United States Supreme Court,[1] served as Associate Justice from 1941 until his premature death, from a heart attack, in 1954, at age sixty-two.2 His death prompted the following tribute at a meeting of the American Society of International Law: If the wit and clarity so characteristic of Justice Holmes [are] to be found in the writings of any of his successors on the Supreme Court bench, [they are] in those of Robert H. Jackson.3
Two close observers of Jackson’s writing, fellow Justice Sherman Minton and Professor Philip Kurland, echoed the international lawyers’ praise for his talent as a writer. Min-ton said of Jackson, He had a keen analytical mind and courage of his convictions and a facility for expression unsurpassed by any man who ever sat on the Court.4
To Kurland, Jackson’s opinions represented “probably the best writing that a Justice of the Supreme Court has ever produced.”5
Despite such praise, Jackson long received scant attention from legal scholars, political scientists, and historians, perhaps because his Court tenure was relatively short or because his lack of a hard-and-fast ideology deprived him of devoted disciples to burnish his legacy.6 But, over time, the legacy burnished itself and caught scholars’ attention, due at least in part to the power of his prose.[7] Jackson’s powerful prose – especially as it reflects the creative use of rhetorical devices – is the focus of this article. He deserves to be heralded for the quality of his writing alone, although his compelling biography and his constitutional philosophy merit discussion too.
From Country Lawyer to America’s Lawyer
Jackson’s path to the Court surely ranks as among the most unlikely and unusual in that tribunal’s storied history. Jackson began life in his family’s farmhouse in Spring Lake, Pennsylvania. When he was five, the family left the farm and moved north across the state line to Frewsburg, New York, where Jackson’s father would later run a hotel and a livery stable.8 At Frewsburg High School, Jackson exhibited early signs of the advocacy skills for which he would later become renowned. Judge Harley N. Crosby of Falconer, New York saw the young Jackson’s penchant for oral advocacy up close, which he recalled years later. As a (then) young lawyer, I was called to Frewsburg, [Jackson’s] home town, to sit on a board of judges in a high school debate between Frewsburg and Sinclairville.
The debate was going very well indeed for Sinclairville until the last speaker from Frewsburg burst into song. He was a mere stripling of a boy, wore knee pants, I recall, and was not more than fourteen years old. Holy
Moses! You should have heard that boy debate. I was astounded.9
After graduating from Frewsburg High School in 1910, Jackson, who could not afford to attend college, wisely decided to take a one-year graduate course at the high school in the small nearby city of Jamestown, where he came under the tutelage of English teacher Mary Willard and American History teacher (and Principal) Milton Fletcher, who also tutored Jackson privately in economics.10 Mary Willard was especially influential because Jackson spent many evenings with her and her sister in their home, listening to opera and classical music and reading Shakespeare, George Bernard Shaw, and other writers.11 Both she and Fletcher encouraged him to study law, which one could then do through an apprenticeship and without having obtained an undergraduate degree.
Fortunately for Jackson, Frank Mott of Jamestown, a cousin of Jackson’s mother, invited him to become an apprentice in Mott’s law office after his postgraduate year at Jamestown High School.12 Although he helped Mott prepare for trials and joined Mott in after-hours political discussions, Jackson learned the law primarily from Mott’s partner, Benjamin Dean, a scholarly sort who directed Jackson’s reading of Blackstone, Kent, and other authorities, discussed them at length with the young apprentice, and taught him how to research the law too.13
After a year in Mott’s office, Jackson borrowed money from his mother’s brother to attend Albany Law School for a year because his father, who wanted him to study medicine instead, refused to pay for law school.14 The law school gave Jackson one year of credit for his apprenticeship, so after the year at Albany, he had completed the then-two-year program.15 But because he was only twenty years old and ineligible to take the New York Bar Exam, the school granted him only a diploma of graduation, not a law degree, in 1912.16 Jackson then returned to Frank Mott’s law office for another year as an apprentice before passing the bar exam in 1913 and being admitted to practice at the age of twenty-one.17
Despite his youth and inexperience, Jackson would soon have a law practice of his own, as Mott departed Jamestown for a new job in Albany in the summer of 1913, leaving his practice to Jackson.18 The newly minted attorney practiced alone for awhile, then with several Jamestown firms of which he was a named partner, until 1934, when he moved to Washington, D.C. to work for the federal government.19
Initially, Jackson’s practice was strictly small-time, including trials before nonlawyer Justices of the Peace in unlikely venues, including a school, a church, and the dance hall of a Masonic temple, wherever space was available.[20] On one occasion, Jackson later recalled, the JP’s house lacked room for a trial, so “we put up some oil lanterns, put some boards across potato crates for people to sit on, and we tried the case in the barn.”21 Jackson’s practice did not remain small time, though. Indeed, it grew along with the industrialization of upstate New York and eventually featured an interesting mix of clients, including the Jamestown Telephone Corporation, the Jamestown Street Railway, the Central Labor Council, and the Bank of Jamestown.22 As a result, Jackson amassed a considerable fortune that enabled him to keep a thirty-foot boat on Lake Chautauqua and to take his family on vacations to Cuba, Florida, California, and Arizona during the Great Depression.23
Just as Jackson’s law practice and personal wealth grew, so did his public visibility. His four-year term (1928-32) as president of the Federation of Bar Associations of Western New York brought him statewide prominence, which, in 1933, prompted Democratic National Committee Chair James Farley, a New Yorker, to invite Jackson, a lifelong Democrat from a largely Republican region, to tour New York state with Farley to promote the election of a Democratic State Assembly the following year.24 Afterwards, Farley asked Jackson if he would take a job in the federal government; initially, Jackson declined the offer, but in 1934, he accepted a position as counsel to the Bureau of Internal Revenue.25 The rest of Jackson’s service in the federal government is the stuff of legend; within the next seven years, he would become a close friend of FDR, Assistant Attorney General, Solicitor General, Attorney General, and, in 1941, a Supreme Court Justice.[26] In 1945 President Truman would tap Jackson to be the chief American prosecutor at the Nazi War Crimes Trials in Nuremberg, Germany, the first such prosecutions in history.27
Robert Jackson became a close friend of Franklin Roosevelt by making himself indispensable to the Administration. In his first Washington job, he salvaged the Treasury Department’s botched prosecution of its former Secretary, Andrew Mellon, by winning a civil judgment, resulting in an $800,000 tax recovery for the government and Mellon’s promise to support the creation of and donate paintings to a new National Gallery of Art.28 As Assistant Attorney General, Jackson vigorously and deftly defended FDR’s ill-fated plan to remake the conservative Hughes Court by appointing a new Justice for every sitting Justice over age seventy.29...
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