JACKSON, ROBERT H. (1892–1954)

The orderly, middle-class world of Jamestown, New York, the economic calamity of the Great Depression, and the horrors of Nazi Germany—these were the crucial experiences that shaped the jurisprudence of Robert Houghwout Jackson, the only Supreme Court Justice to serve both as solicitor general and attorney general of the United States, and the last to learn his law initially through the old-fashioned apprentice method.

Appointed to the Court by franklin d. roosevelt in 1941 and facing the most important constitutional issues of the post-Depression era—the scope of federal economic management and the nationalization of the bill of rights—Jackson helped to accelerate the former but resisted the latter. In alliance with his close friend and colleague felix frankfurter, he often found himself locked in combat between 1941 and 1954 with Justices hugo l. black and william o. douglas, the ideological leaders of the Court's liberal block.

Few Justices in the Court's history articulated a more robust version of economic nationalism than Justice Jackson who, despite his small-town heritage and solicitude for independent entrepreneurship, supported consistently the expansion of federal economic regulation and the growth of an integrated national marketplace, which soon became dominated by giant corporations. Jackson wrote a sweeping validation of congressional authority under the commerce clause in wickard v. filburn (1942), and he also used that provision absent federal law in H. P. Hood & Sons v. DuMond (1949) to strike down state regulations that insulated local economic activities from the rigors of interstate competition.

The crisis of the Great Depression convinced Jackson of the dangers of both laissez-faire and economic Balkanization. His later confrontation with Nazism when he served as chief American prosecutor at Nuremberg persuaded him of the dangers posed to human freedom by the growth of a monolithic police state. His firm commitment to economic nationalism never wavered, except near the end of his life in situations where the federal government began to employ the commerce clause in an effort to regulate more than traditional economic activities. A year before his death, for example, Jackson narrowly construed a federal anticrime statute, voting to sustain the dismissal of indictments for failure to register as dealers in gambling machines in United States v. Five Gambling Devices (1953). In the course of making their arrests in the case, FBI agents had stormed into a Tennessee country club and seized slot machines that were not shown to have been transported in interstate commerce. Jackson read into the statute a requirement of such a showing.

Jackson's fears of expanded federal police controls became so pronounced that he resisted efforts to attack racial discrimination by means of the criminal and civil provisions of the Reconstruction-era civil rights acts, especially where these efforts threatened to undermine the autonomy of local law enforcement officials, such as screws v. united states (1945) and Collins v. Hardyman (1951). He also opposed federal judicial intervention under the fourteenth amendment to correct local abuses in the administration of criminal justice. Although he interpreted the fourth amendment strictly as to federal searches and seizures, as in his dissent in brinegar v. united states (1949), he refused to extend the exclusionary rule to state criminal prosecutions, and he exhibited broad toleration for local police practices that shocked other members of the Court. "Local excesses or invasions of liberty," he wrote, "are more amenable to political correction," a point of view which no doubt surprised Mississippi Negroes and many state criminal suspects who endured the third degree. Even Frankfurter broke with Jackson on these issues, for example, in irvine v. california (1954).

Jackson's small-town roots and his fear of mass-based political movements such as Nazism colored his views of other civil liberties issues as well. He often defended the lone individual against the repressive machinery of the state, but he thoroughly distrusted people in groups, especially well-organized, zealous minorities who threatened to disrupt what Jackson regarded as the community's peace, stability, and proper order. The Constitution, he believed, prohibited West Virginia officials from imposing a mandatory flag salute observance on the children of Jehovah's Witnesses. (See flag salute cases.) The federal government, likewise, could not convict without a finding of criminal intent, condemn for treason without substantial proof, or hold a hapless alien indefinitely on Ellis Island without charging him with a specific crime. "This man, who seems to have led a life of unrelieved insignificance," he wrote angrily, in shaughnessy v. united states ex rel. mezei (1953) (dissenting opinion), "must have been astonished to find himself suddenly putting the Government of the United States in such fear that it was afraid to tell him why it was afraid of him.… No one can make me believe that we are that far gone."

Yet Jackson did not believe that the Constitution gave cadres of Jehovah's Witnesses the right to distribute their religious literature in defiance of local ordinances prohibiting house-to-house canvassing and ringing doorbells. "I doubt if only the slothfully ignorant wish repose in their homes," he wrote sarcastically in Martin v. City of Struthers (1943), responding to Justice Black's opinion upholding the Witnesses' claim, "or that the forefathers intended to open the door to such forced "enlightenment' as we have here." A similar loathing for collective political behavior informed his attitude toward the Communist party which, like the Nazi organizations condemned at Nuremberg, he equated with a conspiracy against the social order in a concurring opinion in Dennis v. United States (1951).

Jackson's belief in the fragility of the political system also made him a conservative on most freedom of speech issues, witness his dissenting opinion in kunz v. new york (1950). He objected, for instance, to the specific law upheld in the famous Illinois group libel case, beauharnais v. illinois (1952), but he acknowledged the state's "commendable desire to reduce sinister abuses of our freedom of expression—abuses which I have had occasion to learn can tear society apart, brutalize its dominant elements, and persecute, even to extermination, its minorities."

Witty, combative, and gifted with an eloquent prose style, Jackson remained a person of many paradoxes: the rugged individualist who helped to fashion the New Deal's welfare state; the two-fisted prosecutor who wished to be the disinterested judge; and the economic nationalist who distrusted the growth of centralized, bureaucratic authority.

Michael E. Parrish
(1986)

Bibliography

Gerhart, Eugene C. 1958 America's Advocate: Robert H. Jackson. Indianapolis: Bobbs-Merrill.

Jaffe, Louis L. 1955 Mr. Justice Jackson. Harvard Law Review 68:940–998.

White, G. Edward 1976 The Dilemmas of Robert Jackson. Pages 230–250 in White, The American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press.