In 1945 Robert Jackson shocked his colleagues and walked away from the Supreme Court. It wasn’t a permanent leave; he was on sabbatical.
The former solicitor general, who also happened to be one of Franklin Roosevelt’s favorite poker buddies, was leaving the court to prosecute Nazis at Nuremberg. It wasn’t a popular decision with his colleagues.
In one of his myriad memoirs, associate justice and irascible non vivant William O. Douglas wrote:
I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that If Bob did that, he should resign. Moreover, some of us – particularly Stone, Black, Murphy and I – thought that Nuremberg trials were unconstitutional by American standards.
Truth be told, Jackson and Douglas were rivals. Though they were both democrats nominated by Roosevelt, they both fancied themselves at times of being of presidential timbre.
No matter what he thought of Jackson, Douglas admits Jackson handled himself well at Nuremberg.
Jackson didn’t just hold Nazis accountable, though.
When Korematsu came before the court, Jackson was a shining light. A brief recap of Korematsu: During World War II, President Roosevelt signed executive order 1066, which interred Japanese Americans. It’s a vile chapter in our country’s history. It was morally repugnant and based in rank political cowardice. Eventually, a case made its way to the court, where the court sided with the government.
Jackson was one of three justices to dissent, offering some memorable passages, including:
…(h)is 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.
The principled Jackson’s foray to Nuremberg came at great political cost, however. It tore at his family and it also possibly cost him a chance at being Chief Justice.
Roosevelt had long promised to elevate him to the role and he expected Roosevelt’s successor, Harry Truman, to nominate him.
We now know that other factors also weighed on Truman’s mind. Justice Black threatened to resign if his colleague was given the spot.
Black’s contempt for Jackson might only have been equaled by Douglas’. No doubt that hurt Jackson’s chances. And he wasn’t in the country to defend himself.
How influential was Jackson? One of his law clerks was William H. Rehnquist, who ended up becoming an Associate and Chief Justice.
Rehnquist’s nominations give us a final fascinating look at Jackson.
Rehnquist was Jackson’s clerk during Brown, probably the court’s most important decision of the 20th century. It ended up being a unanimous decision destroying Plessy V. Ferguson. Brown desegregated schools and is heralded as a high mark in the history of not just the civil rights movement, but of the court itself. During the deliberations on whether or not to approve President Nixon’s nomination of Rehnquist, a memo was found. Signed by Rehnquist, it said Plessy shouldn’t be overturned.
Rehnquist claimed that was Jackson’s opinion. However, considering Jackson’s previous writings on equality, his vote in the case and Rehnquist’s initials, that’s hard to believe. But Jackson was long dead and couldn’t defend himself.
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