The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.     

The Original Justice Roberts

The Supreme Court had rarely, if ever, seen a fight quite like the one over the farewell letter to a departing Justice. It started routinely enough in the summer of 1955, when Chief Justice Harlan Fiske Stone drafted a letter of farewell to Justice Owen J. Roberts, who had suddenly resigned after fifteen eventful years on the Court. The six-sentence missive went first to the Senior Associate Justice, Hugo L. Black, to be signed and passed along to his Brethren.     

Unlikely Abolitionist: William Cushing and the Struggle Against Slavery

One of the striking differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. Acting pursuant to its power to determine the structure of that Court, Congress determined that the Court should consist of one Chief Justice and five Associate Justices. The six lawyers President Washington named to the Court ¹ were leading members of the bar, yet none achieved lasting distinction by reason of his service on the Court. Chief Justice Jay, for example, is best remembered for the treaty with England which bears his name; and when he resigned in 1795 following his election as Governor of New York, local papers referred to his new office as "a promotion." ²     

A Voice from behind the Bench: Recollections of a Supreme Court Page

Frank Lyman was 13 years old when he was selected as a Supreme Court page. He served five years, from September 1923 until the spring of 1928, when he became too tall and was forced to leave the page corps. Mr. Lyman served his last two years at the Court as Head Page, supervising the other three pages he worked with.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

John Marshall Harlan's Political Memoir

Near the end of his life, John Marshall Harlan wrote a number of biographical essays, presumably at the request of his children. Most of the essays relate to his experiences in the Civil War. The essay reprinted here instead recounts Harlan's political career before he joined the Supreme Court. Although he rarely won any elections and only held a couple of offices, Harlan's political odyssey is significant in that it shows how his social views were formed. Harlan's transformation from a staunch anti‐abolitionist to a civil‐rights advocate can be viewed as a series of reactions against various opponents as he struggled to find his political identity after the collapse of the Whig party in the 1850s.     

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.     

Wives,Children … Husbands: Supporting Roles

In 1965, Hugo L. Black asked his wife, Elizabeth, to host a dinner party. The purpose: to help him persuade Carolyn Agger, wife of Washington attorney Abe Fortas, to allow her husband to accept President Lyndon B. Johnson's offer of a seat on the Supreme Court. A tax lawyer at the same firm as Fortas, Agger was displeased that the move would mean a big cut in his salary; she thought he should spend a few more years in his lucrative private practice before becoming a judge. After all, he was only fifty‐five. Elizabeth Black described the tense occasion in a diary entry:     

Lincoln and the Rebirth of Liberal Democracy

It is a privilege to speak in this, the house of the Supreme Court of the United States, of Abraham Lincoln, our supremely great President. His task, he said, was greater than George Washington's. In the United States’ gravest crisis and most terrible war, Lincoln saved the country, its democratic republic, and the republic's devotion to the equal rights of man. He did more than save. He renewed the republic and purified it of slavery.     

“Spreading the Wealth”: Justice Tom C. Clark's Wide‐ranging Efforts to Open the Doors of the Law Clerk Ranks

Associate Justice Tom C. Clark retired from the Supreme Court at the conclusion of its 1966 term to avoid even the appearance of impropriety when his son, Ramsey, became the U.S. Attorney General. “I believe it would be best for me to retire,” Clark wrote one well‐wisher, “Litigants have enough problems without having a father‐son psychology to face. And while there is no actual conflict the potential is there and the appearance of justice is as important and effective as the real thing.” ¹ Clark had served on the Court eighteen years, and he began his retirement with a three‐month, state‐sponsored goodwill trip around the world, which was cut short when he contracted hepatitis in Thailand.     

Tribute to Justice Souter

When the U.S. Supreme Court Justices took their seats at the beginning of the 2009 Term, the Bench looked different. Gone from the Bench, after nineteen years, was David H. Souter. He returned to his home in New Hampshire, a state he likes enormously. Justice Souter will be missed by his former colleagues and by advocates before the Court, by legal scholars nationwide and by all who follow the Court's work and activities.     

Remembering Rehnquist

William Hubbs Rehnquist spent the last thirty-three years of his life as a member of the U.S. Supreme Court, fifteen as an Associate Justice and eighteen as Chief Justice. I met Bill when I was a freshman at Stanford in 1946. He was attending Stanford and working part time as a "hasher" at my dormitory during the evening meal. He amazed all of the young women by carrying such heavy loads of dishes on his tray. Perhaps that is how he learned to carry all those heavy loads in all of the years that followed. He was tall and good-looking, and he had a sharp sense of humor.     

William O. Douglas Remembered: A Collective Memory by WOD's Law Clerks

William O. Douglas (WOD), who was the longest-serving Justice on the U.S. Supreme Court, was an Associate Justice from April 17, 1939 to November 19, 1975, and thereafter was a retired Justice until his death on January 19, 1980. During this period he employed fifty-four law clerks, one for each Term of the Court except for the 1950, 1967, and 1970 Terms, when he employed two clerks, and starting in the 1971 Term, when he had three clerks until his retirement. Forty-one of his law clerks are still alive, including his first law clerk, David Ginsburg, who at the age of 95 remains mentally and physically active and only recently “retired” from his law practice.     

Robert,earl of Gloucester,and the daughter of Zelophehad

Robert, earl of Gloucester, the leader of Mathilda's party in England during Stephen's reign, has a good press because the main source for his activities is his admirer, William of Malmesbury. This article re-assesses Robert's role and character by concentrating on chroniclers other than Malmesbury and on charter evidence. It finds, by these methods, that Earl Robert may have been in some ways an attractive man, but that he was also a practised curialist, a ruthless factionalist, a plunderer of church lands, and a man who made acquisition of his neighbours' lands one of his main objects. New evidence is presented to account for his behaviour in the crucial months at the end of 1135 and beginning of 1136 when Stephen made himself king. Robert is found to have had little choice but to cross to England because his lands in the southern Marches were under threat from a Welsh rising. His alienation from Stephen in the next few years is traced to a failure at court against his rivals, the Beaumont group. His subsequent private war against the Beaumonts in Dorset and Worcestershire is further evidence against Malmesbury 's portrayal of him as a man of pure principle. conduct of the war against Stephen after 1139 can be shown to have had serious flaws. The result was a rebellion against him by his own sons and the repudiation of his methods (if not his acquisitions) by his successor Earl William. Evidence is presented that Earl William sparked off the movement amongst the magnates to draw up private treaties to contain the Anarchy. In view of all this, it is not surprising to find indications that Earl Robert lacked any real commitment to the claims of his half-sister, the empress.     

A Transformed Triangle: Court, Congress, and Presidency in Civil Rights

The relative permeability of the three elements of a triangle-the Supreme Court, Congress, and the president-to civil rights interest groups has varied over time. For almost two decades after World War II, the Supreme Court was the groups' preferred arena because Congress was resistant and presidents could thus do little or were hesitant to act. For a brief time in the mid-1960s the president and Congress became supportive of civil rights groups' claims while the Court also remained accessible. Starting in the late 1960s executive and legislative support for civil rights moderated, with presidential support declining significantly in the 1980s. When the Supreme Court adopted that latter stance, Congress became the body through which to protect civil rights by reversing the Court's decisions. In this examination of the "transformed triangle" in civil rights policymaking, we look at this change over time and at "flip-flops" in litigation as one administration changes the position espoused by its predecessor, and we also give some attention to the Supreme Court's response to congressional reversal of its rulings.     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

The "Lone Dissenter"

The tenure of Associate Justice—and later Chief Justice—William H. Rehnquist on the Supreme Court spanned more than three decades. Despite his public importance, he was a quite private man. During his time on the Court, relatively few accounts appeared of what life was like inside the Rehnquist chambers, especially during his years as an Associate Justice. In the aftermath of his death last fall, former clerks have begun to reminisce about what it was like to clerk for him.     

The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²