ROBERT H. JACKSON:
THE CONSUMMATE PROFESSIONAL
By Michael E. Keasler, Judge
Texas Court of Criminal Appeals
When President Dressel
asked me to deliver the Jackson Lecture, I was both touched and honored.
I thought of all the previous distinguished lecturers and wondered how I could
live up to the high standards they had set. My immediate reaction was, in
the words of Jack Benny, “I don’t deserve this. But I have arthritis, and
I don’t deserve that, either.”
It is
particularly appropriate that I should talk to you about the remarkable man for
whom this lecture was named---Supreme Court Justice Robert H. Jackson. I
have pictures of five personal heroes hanging in my chambers---five individuals
who personify excellence. They include Abraham Lincoln, Lou Gehrig,
Professor Charles Alan Wright, legendary District Attorney Henry Wade, and
Robert Jackson. To me, Justice Jackson represents the very best the bench
and bar have to offer.
Robert
Jackson was born in Pennsylvania in 1892 but moved to Chautauqua County, New
York, when he was five years old. He graduated from high school in 1910
and took a one-year graduate course at Jamestown High School the next year,
while starting a three-year clerkship in a law office. The next year,
1911, he entered Albany Law School and finished the two-year course of study in
one year. He then went back to Jamestown, finished his clerkship, took
the New York Bar Examination, and was admitted to practice in 1913 at the age
of twenty-one.
Jackson
practiced law in Jamestown over twenty years and was very successful. By
all accounts, he was a complete general practitioner---tough, brilliant, hard
working. He was a leader at the bar, serving as president of his local
bar association and later as Chairman of what is now the ABA House of
Delegates. A friend later said of him, "Robert Jackson represented
the advocate at his best. He possessed the rare combination of a good
jury personality and the qualities of a profound lawyer. He knew how to
talk persuasively to a jury of Chautauqua County farmers, yet he could argue
the points of law involved in the case with great learning and with
unanswerable logic, either before the trial judge or an appellate court.
He had high standards of craftsmanship as a lawyer; he was thorough and
painstaking in preparation."[1]
In 1930,
Jackson was proposed for membership in the prestigious American Law
Institute. In the membership committee then Chief Judge Cardozo supported
his election. When the time came to vote on Jackson, a committee member
asked, "Who is Jackson? I have never heard of him."
Cardozo
replied, "You will---in time."[2]
In 1934,
Jackson joined the Roosevelt Administration as General Counsel of the Internal
Revenue Service. Roosevelt successively appointed him Assistant Attorney
General in charge of the DOJ Tax Division, and Attorney General in charge of
the Anti-Trust Division. He performed each assigned task efficiently and
professionally, quickly earning the reputation as the administration's best
lawyer. In 1938, Roosevelt appointed Jackson Solicitor General, and he
performed the job so admirably, Justice Brandeis commented that he should be
Solicitor General for life. In 1940, Roosevelt appointed Jackson Attorney
General.
One of his colleagues in the Justice Department later said, "As Attorney
General, Solicitor General, and Assistant Attorney General,…he lost but a
single case in the Supreme Court. Against [that] may be tallied some
twenty-seven arguments which he won.”[3]
In April of that year, Jackson addressed the Second Annual Conference of United
States Attorneys. He told them, "Nothing better can come out of this
meeting of law enforcement officers than a rededication to the spirit of fair
play and decency that should animate the federal prosecutor. Your
positions are of such independence and importance that while you are being
diligent, strict, and vigorous in law enforcement you can also afford to be
just. Although the government technically loses its case, it has really
won if justice has been done…
“The qualities of a good prosecutor are as elusive and as impossible to define
as those which mark a gentleman. And those who need to be told would not
understand it anyway. A sensitiveness to fair play and sportsmanship is
perhaps the best protection against the abuse of power, and the citizen's
safety lies in the prosecutor who tempers zeal with human kindness, who seeks
truth and not victims, who serves the law and not factional purposes, and who
approaches his task with humility."[4]
On June 12,
1941, President Roosevelt appointed Robert Jackson as Associate Justice of the
Supreme Court. He served there until his death in 1954. A
leading constitutional scholar summarized his judicial career in these words:
"Nature had given him a bright, strong mind---it was one of the best three
or four, possibly five, of the Court during his years of service. It was
a disciplined mind---self disciplined, and sharpened by the varied incidents of
a general practice. He had attended no college. His engaging style,
his easy acquaintance with good literature, he had acquired for himself.
Even in his one year of law school, his training had been in practical subjects
taught by practical men. The assurance and courage that come from
professional mastery, that too he had won for himself. So he became an
exemplar of the best virtues we attribute to our tough common-law system.
He thought in terms of concrete operations: a good judge should feel
responsible for the practicality of his judgments. He displayed, too, a
constant concern that the Court's pronouncements convey to the practitioner a
workable rule of conduct. To his fingertips, he retained a feel for active
practice. This was the American lawyer at his best. What he made of
himself is an inspiration and a challenge to all who follow his
calling."[5]
In describing the judicial office, Jackson wrote, "Something happens to a
man when he puts on a judicial robe, and I think it ought to. The change
is very great and requires psychological change within a man to get into an
attitude of deciding other people's controversies, instead of waging
them. It really calls for quite a changed attitude. Some never make
it---and I am not sure I have."[6]
He also wrote, "When we went to school we were told that we were governed
by laws, not men. As a result of that, many people think there is no need
to pay any attention to judicial candidates because judges merely apply the law
by some mathematical formula and a good judge and a bad judge all apply the
same kind of law. The fact is that the most important part of a judge's
work is the exercise of judgment and that the law in a court is never better
than the common sense judgment of the judge that is presiding."[7]
In his book The Supreme Court in the American System of Government, Jackson
wrote shortly before his death, "My philosophy has been and continues to
be that [the Court] cannot and should not try to seize the initiative in
shaping the policy of the law, either by constitutional interpretation or by
statutory construction. While the line to be drawn between interpretation
and legislation is difficult, and numerous dissents turn upon it, there is a
limit beyond which the Court incurs the just charge of trying to supercede the
law-making branches. Every Justice has been accused of legislating and
every one has joined in that accusation of others. When the Court has
gone too far, it has provoked reactions which have set back the cause it is
designed to advance and has sometimes called down upon itself severe
rebuke."[8]
Jackson
believed strongly in judicial restraint and looked askance at attempts to
determine legislative intent. In this respect he was a precursor of
Scalia, Thomas, Easterbrook, and Posner. Listen to his words.
Don't they sound familiar?
"…[I]t is only the words of the bill that have presidential approval,
where that approval is given. It is not to be supposed that in signing a
bill the President endorses the whole Congressional Record."[9]
"I
should concur in this result more readily if the Court could reach it by
analysis of the statute instead of by psychoanalysis of Congress. When we
decide from legislative history, including statements of witnesses at hearings,
what Congress probably had in mind, we must put ourselves in the place of a
majority of Congressmen and act according to the impression we think this
history should have made on them. Never having been a Congressman, I am
handicapped in that weird endeavor. That process seems to me not
interpretation of a statute but creation of a statute."[10]
Jackson's writing style was unique. His colleague Felix Frankfurter said
of him that "[t]o an unusual degree in the history of the Court, Justice
Jackson wrote as he felt. In his case the style was the man….He wrote as
he talked and he talked as he felt. The fact that his opinions were
written talk made them as lively as the liveliness of his talk… He had ‘impish
candor,’ to borrow one of his own phrases. Candor, indeed, was one of his
deepest veins….There was nothing stuffy about him and therefore, nothing stuffy
about his writing…No man who ever sat on the Supreme Court, it seems to me,
mirrored the man in him in his judicial work more completely than did Justice
Jackson…[11] His speech breaks through the printed page. He was one of
those rare men whose spoken word survives in type."[12]
Another
friend said that "[h]e had a reservoir of learning, from which he drew
gracefully and effortlessly. But the most marked quality of his judicial and
non-judicial writing was not the ability to borrow an apt quotation or to find
an idea well expressed by one who had written before him; it was the ability to
think brilliantly in original and bold fashion and to express his thoughts in
forceful and eloquent English of a style inimitably his own. His writing
was pithy and pungent; yet he never sacrificed clarity of thought for a
well-turned phrase. He was a master of the paradox; he had a great love
of alliteration and his antithetical statements were gems. Yet his wit
never descended to the frivolous; it always added a barb to the telling
point. His wit was especially telling when turned upon himself or his
Court…"[13]
Examples of
his wit abound. In a 1951 ABA Journal article about Supreme Court
advocacy, he said:
"I used
to say that, as Solicitor General, I made three arguments in every case.
First came the one I had planned---as I thought, logical, coherent,
complete. Second was the one actually presented---interrupted,
incoherent, disjointed, disappointing. The third was the utterly
devastating argument that I thought of after going to bed that night….
“On your first
appearance before the Court, do not waste your time and ours telling us
so. We are likely to discover for ourselves that you are a novice but
will think none the less of you for it. Every famous lawyer had his first
day at our bar, and perhaps a sad one….Be respectful, of course, but also be
self-respectful, and neither disparage yourself nor flatter the Justices.
We think well enough of ourselves already."[14]
In the 1953 case of Brown v. Allen, Jackson said, "[R]eversal by a higher
court is not proof that justice is thereby better done. There is no doubt
that if there were a super-Supreme Court, a substantial proportion of our
reversals of state courts would also be reversed. We are not final
because we are infallible, but we are infallible only because we are
final."[15]
Jackson's exasperation was quite apparent in the 1947 case of SEC v. Chenery
Corp when he wrote in dissent that "[t]he Court's reasoning adds up to
this: The Commission must be sustained because of its accumulated
experience in solving a problem with which it had never before been
confronted!…I give up. Now I realize fully what Mark Twain meant when he
said, ‘The more you explain it, the more I don’t understand it.’”[16]
With
charming candor, Jackson freely admitted his mistakes. In Massachusetts
v. United States he wrote, "Under these circumstances, except for any
personal humiliation involved in admitting that I do not always understand the
opinions of this Court, I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday."[17]
Again, in writing about one of his own Attorney General’s opinions that he
believed should be overruled, he said in a concurring opinion, “I am entitled
to say of that opinion what any discriminating reader must think of it---that
it was as foggy as the statute the Attorney General was asked to
interpret.” Then, quoting Lord Westbury, he wrote, “I can only say that I
am amazed that a man of my intelligence should have been guilty of giving such
an opinion.”[18]
Professor
Charles Alan Wright believed that Justice Jackson's dissent in the 1944 case of
Korematsu v. United States was the most eloquent judicial statement ever
written describing American democracy. Jackson wrote, "Korematsu was
born on our soil, of parents born in Japan. The Constitution makes him a
citizen of the United States by nativity and a citizen of California by
residence. No claim is made that he is not loyal to this country.
There is no suggestion that apart from the matter involved here he is not law
abiding and well disposed. Korematsu, however, has been convicted of an
act not commonly a crime. It consists merely of being present in the
state whereof he is a citizen, near the place where he was born, and where all his
life he has lived.
"A
citizen's presence in this locality, however, was made a crime only if his
parents were of Japanese birth. Had Korematsu been one of four---the
others being, say, a German alien enemy, an Italian alien enemy, and a citizen
of American-born ancestors, convicted of treason, but on parole---only
Korematsu's presence would have violated the order. The difference
between their innocence and his crime would result, not from anything he did,
said, or thought, different than they, but only in that he was born of
different racial stock.
“Now, if any fundamental assumption underlies our system, it is that guilt is
personal and not inheritable. Even if all of one's antecedents had been
convicted of treason, the Constitution forbids its penalties to be visited upon
him….But here is an attempt to make an otherwise innocent act a crime merely
because this prisoner is the son of parents as to whom he had no choice, and
belongs to a race from which there is no way to resign. If Congress in
peace-time legislation should enact such a criminal law, I should suppose this
Court would refuse to enforce it."[19]
Justice
Jackson correctly predicted that if he were to be remembered by posterity, it
would be for his writing and for his service as the Chief American Prosecutor
at the Nuremberg Trials. In 1945 and 1946, at the request of President
Truman, Jackson took a leave of absence from the Court to serve in that
capacity. The major participants agreed that Jackson was the guiding
force behind the organization and implementation of the Trials, and that his
performance was
masterful.
In his
opening address before the International Military Tribunal, Jackson said, “The privilege
of opening the first trial in history for crimes against the peace of the world
imposes a grave responsibility. The wrongs which we seek to condemn and
punish have been so calculated, so malignant, and so devastating, that
civilization cannot tolerate their being ignored because it cannot survive
their being repeated. That four great nations, flushed with victory and
stung with injury, stay the hands of vengeance and voluntarily submit their
captive enemies to the judgment of the law is one of the most significant
tributes that Power ever has paid to Reason.”[20]
In March of
1954, Justice Jackson suffered a heart attack. His doctors told him that
if he reduced his work activities, he could live a relatively long life.
But he left the hospital on May 17 and went directly to Court so that the
entire Supreme Court could be present when Chief Justice Warren announced the
unanimous decision in Brown v. Board of Education. He soon returned to
his rigorous work schedule. On October 9, 1954, a second heart attack
killed him. He was sixty-two.
In a
memorial tribute in the Columbia Law Review, Justice Frankfurter wrote,
“Self-reliance, good-humored tolerance, recognition of the other fellow’s right
to be and to thrive, even though you may not think he is as good as you are,
suspicion of authority as well as awareness of its need, disdain of arrogance
and self-righteousness, a preference for truculent independence over prudent
deference and conformity---these were the feelings that shaped his outlook on
life. He liked his kind without being sentimental about it; he was
gregarious but shy about intimacies.”[21]
In the same
Columbia Law Review issue, one of his former Justice Department colleagues
wrote, "He had a quiet courage, which never led to a bellow of defiance
but which permitted him to take in every instance the action he thought best
without discernable thought of criticism or personal injury. He was
modest in manner, yet supremely confident of himself and his judgment. He
had a calm which no crisis could disturb, and standards of honorable conduct
which were both rigorous and unshakeable."[22]
Possibly,
the best description of Robert H. Jackson is found in his own words---his 1944
"Tribute to Country Lawyers" in the ABA Journal:
"The
vanishing country lawyer left his mark on his times, and he was worth
knowing. He "read law" in the Commentaries of Blackstone and
Kent and not by the case system…he did not specialize, nor did he pick and choose
clients. He rarely declined service to worthy ones because of inability
to pay. Once enlisted for a client, he took his obligation
seriously. He insisted on complete control of the litigation---he was no
mere hired hand. But he gave every power and resource to the cause.
He identified himself with the client's cause, sometimes too fully. He
would fight the adverse party and fight his counsel, fight every hostile
witness, and fight the court, fight public sentiments, fight any obstacle to
his client's success. He never quit….He moved for new trials, he
appealed, and if he lost out in the end, he joined the client at the tavern in
damning the judge---which is the last rite in closing an unsuccessful case, and
I have officiated at many…
“He loved
his profession, he had a real sense of dedication to the administration of
justice, he held his head high as a lawyer, he rendered and exacted courtesy,
honor and straightforwardness at the Bar. He respected the judicial
office deeply, demanded the highest standards of competence and
disinterestedness and dignity, despised all political use of or trifling with
judicial power, and had an affectionate regard for every man who filled the
exacting prescription of the just judge. The law to him was like a
religion, and its practice was more than a means of support; it was a
mission. He was not always popular in his community, but he was
respected. Unpopular minorities and individuals often found in him their
only mediator and advocate. He was too independent to court the
populace---he thought of himself as a leader and lawgiver, not a
mouthpiece….Often his name was, in a generation or two, forgotten. It was
from this brotherhood that America has drawn its statesmen and its
judges. A free and self-governing Republic stands as a monument for the
little-known and unremembered as well as for the famous men of our
profession."[23]
Robert
Jackson was a famous man of our profession. Indeed, he was the consummate
professional. His splendid example makes me proud to be a judge and
a lawyer. In the words of Professor Charles Fairman, "He will live
in the living law of the Constitution."[24]
[1] Philip Halpern, Robert H. Jackson, 1892-1954, 8 Stanford L. Rev. 4 (1955).
[2] Eugene Gerhart, America’s Advocate: Robert H. Jackson 289 (1958).
[3] Warner W. Gardner, Government Attorney, 55 Columbia L. Rev. 439 (1955).
[4] Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judic. Soc’y 18
(1940).
[5] Charles Fairman, Associate Justice of the Supreme Court, 55 Columbia L.
Rev.486 (1955).
[6] Leon Friedman and Fred L. Israel, 4 The Justices of the United States
Supreme Court 1789-1969 2563 (1969).
[7] Gerhart, supra note 2.
[8] Robert H. Jackson, The Supreme Court in the American System of Government
79-80 (1955).
[9] Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396
(1951).
[10] United States v. Public Utilities Commission, 345 U.S. 295, 319 (1953).
[11] Felix F. Frankfurter, Mr. Justice Jackson, 68 Harvard L. Rev. 938 (1955).
[12] Felix F. Frankfurter, Government Attorney: Foreword, 55 Columbia L. Rev.
437.
[13] Halpern, supra note 1.
[14] Robert H. Jackson, Advocacy Before the Supreme Court: Suggestions
for Effective Case Presentations, 37 A.B.A Journal 801 (1951).
[15] 344 U.S. 443, 540 (1953) (Jackson, J. concurring).
[16] 332 U.S. 194, 213 (1947) (Jackson, J., dissenting).
[17] 333 U.S. 611, 639-40 (1948) (Jackson, J., dissenting).
[18] McGrath v. Kristensen, 340 U.S. 162, 176-78 (1950) (Jackson, J.,
concurring).
[19] 323 U.S. 214, 242-45 (1944) (Jackson, J., dissenting).
[20] Robert H. Jackson, “Opening Address Before the International Military
Tribunal, Nuremberg,” in John Bartlett, Bartlett’s Familiar Quotations 1021
(1968).
[21] Frankfurter, supra note 12.
[22] Gardner, supra note 3.
[23] Robert H. Jackson, Tribute to Country Lawyers: A Review, 30 A.B.A
Journal 139 (1944).
[24] Fairman, supra note 5.