Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board

Conflict, Compromise, and Constitutional Interpretation

David M. O'Brien

• Publisher: University Press of Kansas
• Year: 2017
• Print ISBN: 9780700625185
• eBook ISBN: 9780700625192
• Topic: Law
• Subtopic: Public Law
• Index: Law

Brown v. Board of Education is widely recognized as one of the US Supreme Court’s most important decisions in the twentieth century. Robert H. Jackson, an associate justice on the case, is generally considered one of the Court’s most gifted writers. Though much has been written about Brown, citing the writing and remarks of the justices who participated in the 1954 decision, comparatively little has been said about Jackson or his unpublished opinion, which is sometimes even mistakenly taken as a dissenting opinion. This book visits Brown v. Board of Education from Jackson’s perspective and, in doing so, offers a reinterpretation of the justice’s thinking, and of the Supreme Court’s decision making, in a ruling that continues to reverberate through the nation’s politics and public life.

Weaving together judicial biography, legal history, and judicial politics, Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board provides a nuanced look at constitutional interpretation, and the intersection of law and politics, from inside the mind of a justice, within the context of a Court deciding a seminal case. Through an analysis of six drafts of Jackson’s unpublished concurring opinion, David M. O’Brien explores the justice’s evolving thoughts on relevant issues at critical moments in the case. His retelling of Brown presents a new view of longstanding arguments confronted by Jackson and the other justices over “original intent” versus a “living Constitution,” the role of the Court, and social change and justice in American political life. The book includes the final draft of Jackson’s unpublished opinion, as well as the Warren Court’s opinions in Brown and in Bolling v. Sharpe, for comparison, along with a timeline of developments and decision making leading to the Court’s landmark ruling.

Part One

Chapter One

He Travels Fastest Who Travels Alone

When moving into the marble temple in 1941, Justice Jackson brought a framed 1919 Life magazine photograph of a man working alone at his desk. The caption read, “He travels fastest who travels alone,” from “The Winners” in The Story of the Gadsbys (1888), by English poet Rudyard Kipling (1865–1936). Jackson lived by that motto. It reflected his upbringing and symbolized his career and life’s pursuits.

He acquired the photograph years earlier when working as an apprentice in Frank Mott’s law office in rural Jamestown, New York. Mott, a cousin of his mother, oversaw his study of the practice of law. Mott also introduced him to Franklin D. Roosevelt, at the time a state senator and rising star in New York Democratic politics. In the following decades, along with building a lucrative legal practice, Jackson became increasingly active in Democratic politics and close to Roosevelt, who rose to the governorship in 1928 and to the White House after the 1932 presidential election. In 1934, Roosevelt persuaded him to join the New Deal administration. Jackson’s career in public service was then meteoric. Within seven years, he moved from working as general counsel for the Internal Revenue Service (1934–1936), to an assistant attorney general for the tax and antitrust divisions in the Department of Justice (1936–1937), to serving as solicitor general (1938–1940), to attorney general (1940–1941), and, at age forty-nine, to a seat on the Supreme Court (in 1941, in which he remained until his death on October 9, 1954).

Always a loner (except with family and close friends), Jackson was complex and paradoxical. He had “a dialectical mind,” recalled Paul A. Freund, a longtime Harvard Law School professor who had clerked for Justice Louis D. Brandeis (1916–1939) and worked with Jackson in the solicitor general’s office.1 He was ambitious and proud. He could be morally uncompromising in taking positions, yet also often pragmatic. Politically astute, he nonetheless appeared at times quixotic, or at least difficult to decipher. Although fiercely independent, Jackson still had a keen sense of community. Highly ambitious in both law and politics, as well as deeply concerned about his place in history, he was a “country-gentleman lawyer” who achieved national and international prominence.

While basically self-taught, he was erudite and eloquent. Like most New Deal liberals battling with the conservative majority on the pre-1937 Court, he was associated with “judicial self-restraint”—a label that, after Brown, conservatives would embrace in attacking the liberal “judicial activism” of the Warren Court (1953–1969). Although concerned about the institutional prestige and the prudential limits of the Court’s power, he remained no less committed to the exercise of judicial review and its role in balancing competing interests between the nation and the states and those of individuals and minorities against majoritarian democracy, or when representative government failed, even if that meant overruling precedents when protecting unpopular groups against popular laws.2

An Outsider Inside

Jackson was born in 1892 in Spring Creek, Warren County, Pennsylvania, to a family of yeomen farmers of Scottish-Irish heritage. Five years later, the family moved to Frewsburg, New York, a village near upstate Jamestown. There he grew up and spent the next two decades in private practice and Democratic politics. His family was “uncompromisingly” Democratic, a minority in a virtually all-white rural Republican community. (There was only one black family in his community, and Jackson never experienced segregation firsthand until he moved to Washington, D.C., in 1934.) His family was also Presbyterian, although they were not regular churchgoers like their neighbors. He was later introduced to the Eastern philosophy of theosophy and other universalist faiths of spiritual colonies in late nineteenth-century upstate New York, like Harmonia, six miles south of Jamestown.3

Tolerant of others but staunchly independent, Jackson recalled, his family largely lived “independent of community life” and “never looked to others for support or even companionship.” In a candid oral history interview, he described his family as having “a certain detachment from other people, a certain self-reliance and self-dependence in them that did not care very much what other people thought, or did, or said. . . . They were individualists of the strongest kind . . . [and] were self-sufficient and self-reliant, believed it was up to them to take care of themselves, sought no help and taught, insofar as they consciously taught anything, thrift, industry, and self-reliance.”4

Jackson was even more revealing about the influences on his early life when he drafted (but never completed) an autobiography. In it, he recalled growing up in a different America—one reminiscent of the nineteenth century in which communities were small, rural, and revolved around strong and self-supporting Yankee farmers. That life had quickly receded after World War I; then, in the years after World War II, it had become transformed by increasing urbanization and the growth of a national integrated economy, oriented toward the accumulation of wealth, along with greater social stratification. His reflections are worth quoting because they reveal the complexity of his thought and sense of being torn between “two worlds” throughout his life:5

Frewsburg, New York, 1908. Courtesy of the Fenton Historical Center

I have lived much of my life in a time and an environment that was truly and deeply democratic—democratic in an economic and social as well as in a political sense. That kind of society has largely passed, and I am from the last generation to have had that experience and to have felt the influence of that kind of democracy. The great change in the life I knew dates from World War I. Before that we lived in a fool’s paradise perhaps—but it was the nearest Paradise that most of us ever knew.

Really fundamentally democratic life existed in this country only in communities made up of small, self-sufficient, family-operated farms. These predominated in a belt extending from the coasts of New England through New York, Pennsylvania and Ohio and into the northern Mississippi Valley. . . . The farms of which I speak had rarely over two hundred acres and usually about half that. . . . The design was to be self-sufficient, . . . to depend on markets for cash as little as need be, resorting to them mainly to dispose of surplus above farm needs. Those farms provided a living and a way of life. Their owners were both producer and consumer; they were labor and capital in a unit. . . . The source of well being on these farms was the labor of the family applied to the soil. No great accumulation is possible in this economy and none was expected. . . . Our general level of existence was to be independently poor.

Looking back, even as he was personally driven and rose to the height of the legal profession, Jackson observed: “Our statesmen, lawyers, judges, and leaders no longer come from this socially classless society. They come, instead, from one side or the other of the railroad tracks, often with bitterness from the wrong side or superciliousness from the right side. No longer do they come from homes where they were taught respect both for labor and for property which it produces.” By contrast, he was comfortable with the “rugged individualism” of the late nineteenth century. As he said in a letter to his biographer, he was “an individualist of the school of [Ralph Waldo] Emerson. Self-reliance, self-help and independence of other people I believe to be the basis of character and essential to success.”6

After graduating from Frewsburg High School in 1909, he took a daily trolley five days a week for a year to attend Jamestown’s high school, from which he graduated in 1910. There, he was on the debate team and greatly influenced by two teachers, Mary Willard and Milton J. Fletcher. They introduced him to the classics and taught history and economics; they also encouraged him to go to law school. After graduation, over the objections of his father, who wanted him to become a doctor, Jackson began an apprenticeship with Mott.

Although Jackson did not go to college, he was not “a rare exception, having become a lawyer without attending law school.”7 In fact, he attended Albany Law School for a year, and along with his first year as an apprentice, he met the school’s requirements for its two-year degree. Jackson was not yet twenty-one years old, and under the school’s charter, he was therefore given a diploma of graduation, instead of a degree, in 1912. Years later, in 1941 he delivered Albany Law School’s commencement address and was awarded an LL.B. degree, and another decade later the law school conferred an honorary LL.D. degree upon him.

While in Albany Jackson also regularly listened to oral arguments before the state’s highest court, the New York Court of Appeals, widely considered among the nation’s finest tribunals, in no small measure because of the quality of advocacy of the New York bar. This increased his zeal for advocacy and debate. After the year, he returned to Mott’s law office for another year before passing the New York bar exam.8

Jackson largely learned the skills of lawyering through apprenticeship and self-study, like most members of the Court throughout the nineteenth century. Roosevelt never completed law school but passed a bar exam. His first appointee to the Court, Justice Hugo L. Black, had a law degree from the University of Alabama but had not gone to college. Roosevelt’s second appointee, Justice Stanley Reed, attended Columbia and the University of Virginia law schools but did not graduate. Neither did Justice James Byrnes. Other justices that Jackson argued before and joined on the bench did have degrees from prestigious schools: Chief Justice Harlan F. Stone and Justice William O. Douglas had both graduated from Columbia, and Justice Felix Frankfurter had graduated from Harva...

Table of contents

• Front Cover
• Half Title
• Editor Page
• Title Page
• Copyright Page
• Frontmatter
• Table of Contents
• List of Illustrations
• Acknowledgments
• Introduction: A Story Retold
• Part One
• Part Two
• Back Cover