U.S. Supreme Court, 1941–1954
On June 12, 1941, Roosevelt nominated Jackson as an
associate justice of the U.S. Supreme Court, to fill the vacancy created when
Harlan Fiske Stone replaced
Charles Evans Hughes as
chief justice. Jackson was confirmed by the
United States Senate on July 7, 1941, and took the
judicial oath of office on July 11, 1941. On the Court, he was known for his eloquent writing style and championing of individual liberties. In 1943, Jackson wrote the majority opinion in
West Virginia State Board of Education v. Barnette, which overturned a public school regulation making it mandatory to
salute the flag, and imposing penalties of expulsion and prosecution upon students who failed to comply. Jackson's stirring language in
Barnette concerning individual rights is widely quoted. Jackson's concurring opinion in 1952's
Youngstown Sheet & Tube Co. v. Sawyer (forbidding President
Harry Truman's seizure of steel mills during the
Korean War to avert a strike), in which Jackson formulated a three-tier test for evaluating claims of Presidential power, remains one of the most widely cited opinions in Supreme Court history.
Feud with Hugo Black Justices Jackson and
Hugo Black had profound professional and personal disagreements dating back to October 1941, the first term during which they served together on the Supreme Court. According to
Dennis Hutchinson, editor of
The Supreme Court Review, Jackson objected to Black's practice of importing his personal preferences into his jurisprudence. Hutchinson quotes Jackson as having remarked, "With few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties." While Hutchinson points out that Jackson objected to Black's style of jurisprudence in such cases as
Minersville v. Gobitis (1940) and
United States v. Bethlehem Steel (1942), Black's involvement in the
Jewell Ridge case struck Jackson as especially injudicious. In
Jewell Ridge Coal Corp. v. Mine Workers (1945), the Supreme Court faced the issue of whether to grant the coal company's petition for a rehearing, on the grounds that the victorious miners were, in a previous matter, represented by Crampton P. Harris, who was Justice Black's former law partner and personal lawyer. Despite this apparent conflict of interest, Black lobbied the Court for a
per curiam denial of the petition. Justice Jackson objected, with the result that Jackson filed a concurrence disassociating himself from the ruling and, by implication, criticizing Black for not addressing the conflict of interest. Jackson also strongly objected to Black's judicial conduct in
Jewell Ridge for another reason. As Jackson later alleged, while Justice Murphy was preparing his opinion, Black urged that the Court hand down its decision without waiting for the opinion and dissent. In Jackson's eyes, the "...only apparent reason behind this proposal was to announce the decision in time to influence the contract negotiations during the coal strike" between the coal company and the miners, which were taking place at the time. Jackson probably regarded Black's conduct as unbecoming of a Supreme Court Justice in another related matter. On April 3, 1945, the Southern Conference for Human Welfare held a dinner, at which it honored Justice Black as the 1945 recipient of the Thomas Jefferson Award.
Fred M. Vinson spoke at the dinner. While Jackson declined an invitation to the event, citing a conflict arising out of the fact that a number of leading sponsors of the dinner were then litigants before the Supreme Court, Black attended the dinner and received his award. Crampton Harris, counsel in two pending cases,
Jewell Ridge and
CIO v. McAdory (1945), was one of the sponsors. Jackson later took these grievances public in two cables from Nuremberg. Jackson had informally been promised the Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and Roosevelt was dead. President
Harry S. Truman was faced with two factions, one recommending Jackson for the seat, and the other advocating for
Hugo Black. In an attempt to avoid controversy, Truman appointed Vinson. Jackson blamed machinations by Black for his being passed over for the seat, and publicly exposed some of Black's controversial behavior and feuding within the Court. The controversy was heavily covered in the press, casting the
New Deal Court in a negative light, and had the effect of tarnishing Jackson's reputation in the years that followed. On June 8, 1946, Jackson sent a cable to President Truman. Jackson's cable to Truman began with an insincere offer of congratulations to the President for his appointment of Vinson. However, the cable then quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, according to which Truman had appointed Fred Vinson, in part, to avert a resignation on the part of Justice Black. Rumors had been circulating in Washington that Black would resign in the event that Truman chose Jackson as
Chief Justice Stone's successor. "I would be loath to believe that you would concede to any man a veto over court appointments." Jackson closed his cable by stating that he could not continue his service as an Associate Justice under Vinson if an associate "had something on [him]", which would disqualify him from serving, or if he, Truman, regarded Jackson's opinion in the
Jewell Ridge case as a "gratuitous insult" to Justice Black. After receiving a response from Truman in which he denied having given consideration to, or having even heard of, the rumor of Black's threatened resignation, Jackson rashly fired off a second cable to
Congress, on June 10. This cable stated Jackson's reasons for his belief that Justice Black faced a conflict of interest in
Jewell Ridge, from which he wrongfully, at least, in Jackson's eyes, did not
recuse himself, and ended with Jackson's threat that if such a practice "is ever repeated while I am on the bench, I will make my
Jewell Ridge opinion look like a letter of recommendation by comparison."
Dennis v. United States "Clear and present danger" test In 1919, the Supreme Court decided
Schenck v. United States. In Schenck, the petitioners, members of the
Socialist Party, were convicted of violating the
Espionage Act of 1917 for printing and distributing
circulars asserting that American citizens had a right to oppose the draft during
World War I because, among other things, it violated the United States Constitution. The
Schenck decision promulgated the "clear and present danger test," which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed. Justice
Holmes, writing for a unanimous court, affirmed the decision of the lower court positing: We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done ... The question in every case is whether the words used are used in such circumstances, and are of such a nature as to create a "clear and present danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
Background In 1951, the Supreme Court decided
Dennis v. United States. The principal texts used to teach the doctrine were:
History of the Communist Party of the Soviet Union;
Foundations of Leninism by
Stalin;
The Communist Manifesto by
Marx and
Engels; and
State and Revolution by
Lenin. The issue before the Supreme Court was "[w]hether either §2 or §3 of the
Smith Act, inherently, or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights ..."
Jackson's concurrence In
Dennis, Jackson concluded that the "clear and present danger test" should not be applied. To this end, Jackson analyzed: the effect Communism had outside the United States; the nature of Communists; and the problems with applying the test. Jackson's analysis can be summarized as follows: On the effect that Communists historically had on foreign countries, Jackson analyzed their effect on
Czechoslovakia. In Czechoslovakia, a Communist organization disguised as a competing political faction secretly established its roots in key control positions "of police and information services." The goal of Party members is to secretly infiltrate key positions of government, industry, and unions and to leverage their power once in such positions. On the problems with applying the clear and present danger test in
Dennis, Jackson deemed significant that the test was authored "before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties." Jackson believed that the application of the test should be limited to cases bearing strong enough likeness to those for which it was originally crafted – i.e., "...criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of Jehovah Witness school children to salute our flag." Jackson asserted that the test provided Communists with "unprecedented immunities," while the "Government is captive in a judge-made verbal trap." Jackson concludes his First Amendment analysis in
Dennis by asserting that: The authors of the "clear and present danger test" never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late. essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine. Jackson, however, as one commentator put it, expressed in
Dennis (at least with regards to Communists) that, "when used as part of a conspiracy to act illegally, speech loses its First Amendment protection."
Korematsu v. United States Background Following the Japanese attack on Pearl Harbor on December 7, 1941, there was great suspicion surrounding Japanese-Americans, particularly those residing on the West Coast of the United States. Roosevelt issued
Executive Order 9066 on February 19, 1942, giving the
War Department permission to declare some zones "military zones" in which they could prohibit certain people from accessing prescribed areas. With this executive order, the War Department was able to declare that all United States citizens of Japanese ancestry were prohibited from areas in California that were deemed unsafe for Japanese-American habitation for national security purposes, and it forced them into internment camps.
Fred Korematsu, born to Japanese parents on American soil, believed that this was an unconstitutional infringement on an individual's civil liberty. The question that came before the Supreme Court was whether the Executive and Legislative branches went beyond their war powers by depriving citizens of rights with no criminal basis.
Jackson's dissent The Supreme Court decided that the President and Congress did not stretch their war powers too far by choosing national security over an individual's rights in a time of war. Justice Hugo Black wrote the majority opinion for this case, and Jackson wrote a dissenting opinion. The opening paragraph of Jackson's dissent illustrated his view of the case: 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. Jackson warned of the danger that this great allowance of executive power presented, through the War Department's ability to deprive individuals of their rights in favor of national security in time of war: But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it. Jackson was not concerned in evaluating the validity of DeWitt's claim that the internment of Japanese citizens on the West Coast was necessary for national security purposes, but whether this would set a precedent of war-time racial discrimination that would be used to strip individual liberties. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.
Brown v. Board of Education One of Jackson's
law clerks during 1952 – 53,
William H. Rehnquist, was appointed to the Supreme Court in 1971, and became chief justice in 1986. In December 1971, after Rehnquist's nomination had been approved by the
Senate Judiciary Committee and was pending before the full Senate, a 1952
memorandum came to light that he had written as Jackson's law clerk in connection with the landmark case
Brown v. Board of Education that argued in favor of affirming the separate-but-equal doctrine of
Plessy v. Ferguson. Rehnquist wrote a brief letter attributing the views to Jackson, and was confirmed. In his 1986 hearing, he was questioned about the matter. His explanation of the memorandum was disputed in both 1971 and 1986 by Jackson's former secretary, and scholars have questioned its plausibility. However, the papers of Justices Douglas and Frankfurter indicate that Jackson voted for
Brown in 1954 only after changing his mind. The views of Justice Jackson about
Brown can be found in his 1954 unpublished draft concurrence. The "Memorandum by Mr. Justice Jackson, March 15th, 1954", is available with Jackson's papers in the
Library of Congress, but did not become publicly available until after Rehnquist's 1986 hearing for chief justice. Jackson's draft concurrence in
Brown, divided into four parts, shows how he struggled with how to write an effective opinion to strike down segregation. In Part 1 of Jackson's draft concurrence in
Brown, he wrote that he went to school where "Negro pupils were very few" and that he was "predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had." Despite his own opinions regarding desegregation, Jackson acknowledged the inability of the Court to "eradicate" the "fears, prides and prejudices" that made segregation an important social practice in the South. Jackson thus concluded that the Northerners on the Court should be sensitive to the conditions that brought segregation to the South. In Part 2 of the draft
memorandum, Jackson described the legal framework for forbidding segregation in "Does Existing Law Condemn Segregation?". Jackson notes that it was difficult for the Court, which expected "not to make new law, but only to declare existing law," to overturn a decision of such longevity as
Plessy. Looking at the doctrine of
original intent with regard to the Fourteenth Amendment, Jackson found no evidence that segregation was prohibited, particularly since states that had ratified the Fourteenth Amendment had segregated schools at the time. Jackson concluded, "I simply cannot find in the conventional material of constitutional interpretation any justification for saying" that segregated schools violated the Fourteenth Amendment. Part 3 of the draft memorandum, titled "Enforcement Power Limits", describes enforcement by Congress of the Fourteenth Amendment. Jackson addressed the possibility of leaving enforcement to Congress, particularly because the "courts have no power to enforce general declarations of law." Jackson noted that while segregation was already fading in some states, it would be difficult to overcome in those states where segregation was firmly established. While Jackson recognized the difficulties in the Supreme Court enforcing its judgment, he did not want the task to be left to the lower courts, as suggested by the Government. Jackson concluded that the Court must act because "our representative system has failed", and even though this "premise is not a sound basis for judicial action." Finally, in Part 4 of the draft memorandum, "Changed Conditions", Jackson began by stating that prior to
Brown, segregation was legal. According to Jackson, the premise for overruling
Plessy was the now erroneous "factual assumption" that "there were differences between the Negro and the white races, viewed as a whole." The draft asserted that the "spectacular" progress of African-Americans, under adverse circumstances, "enabled [them] to outgrow the system and to overcome the presumptions on which it was based." Jackson emphasized that the changed conditions, along with the importance of a public education, required the Court to strike down the concept of "separate but equal" in public education. While Jackson could not justify the decision in
Brown in law, he did so on the basis of a political and social imperative. It is unknown if Jackson ever intended to publish this concurrence. Jackson was in the hospital from March 30 to May 17, 1954. It is reported that Chief Justice Warren visited Jackson in the hospital several times, and discussed both Jackson's draft opinion and Warren's drafts. One suggestion that Warren took from Jackson was adding the following sentence: "Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world." ==International Military Tribunal, 1945–1946==