Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He was also the chief United States prosecutor at the Nuremberg
Trials.
Early life
Born in Spring Creek Township, Warren County,
Pennsylvania, and raised in Frewsburg, New York, Jackson graduated from
Frewsburg High School in 1909 and spent the next year as a post-graduate student attending
Jamestown High School in Jamestown, New York. Jackson never attended
college. At age 18, he went to work as an apprentice in a Jamestown law office, then attended Albany Law School, in Albany, New York, where he completed
one year of the two-year program. During the summer of 1912, Jackson returned to Jamestown and apprenticed for the next year. He
passed the New York Bar Exam in 1913 at the age of 21 and set up practice in Jamestown, New York. Over
the next twenty years, he became a very successful lawyer in New York State and, through bar association activities, a rising
young lawyer nationally.
U.S. Federal appointments, 1934–1940
Jackson was appointed to federal office by President Franklin Delano Roosevelt
in 1934. Jackson served initially as general counsel of the U.S. Treasury Department's Bureau of Internal Revenue (today's
Internal Revenue Service). In 1936, Jackson became Assistant Attorney General heading the Tax Division of the Department of
Justice, and in 1937 he became Assistant Attorney General heading the Antitrust Division. In 1938, Jackson became
United States Solicitor General, serving until January 1940 as the
government's chief advocate before the Supreme Court.
U.S. Attorney General, 1940–1941
Jackson was appointed Attorney General by Roosevelt in 1940, replacing Frank Murphy.
When Harlan Fiske Stone replaced the retiring Charles Evans Hughes as Chief Justice
in 1941, Roosevelt appointed Jackson to the resulting vacant Associate's seat.
U.S. Supreme Court, 1941–1954
Jackson is widely considered by legal scholars as one of the greatest Supreme Court justices in history, known particularly
for his vivid writing style. In 1943, Jackson authored the majority opinion in West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), 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 (involving President
Harry Truman's seizure of steel mills during the Korean War to avert a strike), where
Jackson formulated a three-tier test for evaluating claims of presidential power, remains one of the most widely cited opinions
in Supreme Court history (it was quoted repeatedly by Supreme Court nominees John
Roberts and Samuel Alito during their recent confirmation hearings).'
Feud with Black
Justices Jackson and Hugo Black had profound professional and personal disagreements
dating back to October 1941, the first term in 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 Jewell Ridge struck Jackson as
especially injudicious.
In Jewell Ridge the Supreme Court faced the issue of whether to grant the coal company’s petition for 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 was 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 Vinson, interestingly, 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 C.I.O.
v. McAdom (1945), was one of the sponsors. (236-7)
Jackson would later take these grievances public in two public cables from Nuremberg. Jackson had informally been promised the
Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and FDR was no longer alive. President
Truman was faced with two factions, one recommending Jackson for the seat, the other
advocating Hugo Black. In an attempt to avoid controversy, Truman appointed Fred M. 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 and
cast the New Deal Court in a negative light and had the unfortunate effect of tarnishing
Jackson's reputation in the years that followed.
On June 8th, 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. But, the cable then
quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, that 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 loathe 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."
Jackson and Dennis v. United States
1. The Clear and Present Danger Test
In order to understand Jackson’s concurrence in Dennis v. United
States, a basic understanding of the origin of the clear and present danger test is helpful.
In 1919, the Supreme Court decided Schenck v. United States. [1] In Schenk, the petitioners, member 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.[2] The Schenck Court 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 violated.[3] Justice Holmes, writing for a unanimous court, affirmed the convictions of the
lower court positing:
“We admit that in many places and in ordinary time 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 words 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.”[4]
For more on the Clear and Present Danger Test, see Erwin Chemerinsky,
Constitutional Law: Principles and Policies, 957 (Aspen 2ed. 2002) (the clear and present danger test appears to have three
analytical elements: (1) probability of harm, (2) temporality of harm, and (3) degree of harm).
2. Dennis v. United States
a. Background
In 1951, the Supreme Court decided Dennis v. United States.[5] In Dennis, the Petitioners were zealous Communists who organized for the purpose of teaching the
“Marxist-Leninist Doctrine”.[6] The principle text 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.[7] The
Petitioners were convicted for violating §2 and §3 of the Smith Act which, among other things, made it unlawful to conspire to
organize a group which advocates the overthrow of the United States government by force of violence.[8] The issue before the Supreme Court was “[w]hether either s 2 or s 3 of the Smith
Act, inherently or as construed and applied in the instant case, violates the First Amendment of other provisions of the Bill of
Rights…”[9]
b. Jackson's Concurrence
In Dennis, Jackson concludes that the clear and present danger test (the “Test”) should not be applied.[10] To this end, Jackson analyzed: the effect Communists 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 Communists historically had on foreign countries, Jackson analyzed their effect on Czechoslovakia.[11] In
Czechoslovakia, a Communists organization disguised as a competing political faction secretly established its roots in key
control positions “of police and information services”.[12] During a period of national crisis a clandestine Communist organization appeared and successfully
overthrew the Czechoslovakian government.[13]
Establishing control of mass communication and industry, the Communist organization’s rule was one of “oppression and
terror”.[14] Ironically, as Jackson points out, the
Communist organization suppressed the very freedoms which made its conspiracy possible.[15]
On the nature of Communists, Jackson characterizes them as an extraordinarily dedicated and highly selective group disciplined
and indoctrinated by Communist policy.[16] 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.[17] Jackson goes on to say that although
“Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder …” they “advocate[] force only when
prudent” which “may never be necessary, because infiltration and deception may be enough.”[18]
On the problems with applying the Test in Dennis, Jackson deems 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.”[19] 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 school children to salute our flag …”[20] Expressing
strong concern that the expansive construction the Court had recently given the Test in Bridges v. State of California[21], Jackson asserted that the Test provided Communists with
“unprecedented immunities” while “Government is captive in a judge-made verbal trap”.[22] Jackson goes on to describe the application of the Test to Communists when
determining the constitutionality of the Smith Act facially or as applied as one of “apprais[ing] imponderables, including
international and national phenomena which baffle the best informed foreign offices and our most experienced politicians”[23]
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.”[24]
c. Conclusion
In the end the Court applied its own version of the clear and present danger test in Dennis[25] essentially disregarding the analytical elements of probability and temporality
which had previously appeared to be requirements of the doctrine.[26] 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.”[27]
Jackson’s hardened stance on the First Amendment in Dennis may be attributed to strong anticommunist sentiment which had a
grip on Americans during the time of the decision.[28] In
William Wiecek’s article discussing the history of anticommunism in the United States, Wiecek’s asserts that:
“[T]he manufactured image of the domestic Communist, cultivated and propagated by [J. Edgar]
Hoover, the Catholic Church, the American
Legion, and political opportunists, made of Communists something less than full humans, full citizens, fully
rights-endowed. Even sophisticated jurists like … Robert Jackson were captives of that image, anesthetizing [his] sensitivity to
deprivation of rights.[29]... In Dennis and other
Communist cases between 1950 and 1956, the Supreme Court overcame the problem of facts not supporting the results it was
determined to reach by accepting a generic ‘proof’ of Communism’s seditious nature. Disregarding all evidence of both the Party’s
and individual members’ renunciation of violence, the Court substituted literary evidence from outdated classics of
Marxism-Leninism, most written by Europeans of an earlier era, and refused to consider whether the living people before them
actually subscribed to those doctrines…”[30]
For more on the evolution of anticommunism in the United States leading up to the Dennis decision, see generally William M.
Wiecek, The Legal Foundation of Domestic Anticommunism: The Background of Dennis v. United States, 2001 Sup. Ct. Rev. 375,
429 (2001).
Justice Jackson and 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
Justice Jackson only voted for Brown in 1954 after changing his mind.[31]
The ultimate views of Justice Jackson about Brown can be found in his 1954 unpublished draft concurrence. [32] [33][34]The
“Memorandum by Mr. Justice Jackson, March 15, 1954”, is publicly available with Jackson’s papers in the Library of Congress and
did not become publicly available until after Rehnquist’s 1986 hearing for Chief Justice of the United States. 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, Justice Jackson described the legal framework for forbidding segregation in “DOES EXISITING
LAW CONDEMN SEGREGATION?”. Jackson notes the difficulty for the court that was "supposed 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, Justice Jackson found no evidence that segregation was prohibited, particularly since states that
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.
In Part 3 of the draft memorandum entitled “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 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.
Justice 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 “Negroes have achieved outstanding success in the arts and sciences as well as in the business and
professional world.” [32] This quote is
tied to the arguments in Part 4 of Jackson’s draft opinion. On May 17, 1954, Jackson went to the Court from the hospital so he
could be there the day the Brown decision was handed down. When the Brown decision was handed down, a full court
was present to emphasize the unanimity of the decision. Robert H. Jackson died on October 8, 1954 and so there was not enough
time between Brown and the death of Jackson to fully explore his views on desegregation.
International Military Tribunal, 1945–1946
In 1945, President Truman appointed Jackson, who took a leave of absence from the Supreme Court, to serve as U.S. chief of
counsel for the prosecution of Nazi war criminals. He helped draft the London Charter of the International Military Tribunal, which
created the legal basis for the Nuremberg Trials. He then served in Nuremberg, Germany, as
United States chief prosecutor at the international Nuremberg trial. Jackson pursued his prosecutorial role with a great deal of
vigor (for instance, referring in arguments to Hermann Göring as being "half militarist,
half gangster"), and not a little oratorical elegance (his opening and closing arguments before the Nuremberg court are widely
considered among the best speeches of the 20th century). However, his management of the American prosecution case lacked clarity
and drive and his inexperience of effective use of cross-examination was exposed, in particular, by Göring himself. He resigned
his position as prosecutor after the first trial and returned to the U.S. in the midst of controversy.
The following excerpt of the Nuremberg Trials gives a sense of the exchanges:
MR. JUSTICE JACKSON: Well, those preparations were preparations for armed occupation of the Rhineland, were they not?
GOERING: No, that is altogether wrong. If Germany had become involved in a war, no matter from which side, let us assume from the
East, then mobilization measures would have had to be carried out for security reasons throughout the Reich, in this event even
in the demilitarized Rhineland; but not for the purpose of occupation, of liberating the Rhineland.
MR. JUSTICE JACKSON: You mean the preparations were not military preparations?
GOERING: Those were general preparations for mobilization, such as every country makes, and not for the purpose of the occupation
of the Rhineland.
MR. JUSTICE JACKSON: But were of a character which had to be kept entirely secret from foreign powers?
GOERING: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United
States.
MR. JUSTICE JACKSON: Well, I respectfully submit to the Tribunal that this witness is not being responsive, and has not been in
his examination, and that it is . . .
[The defendant interposed a few words which were not recorded.]
It is perfectly futile to spend our time if we cannot have responsive answers to our questions.
[The defendant interposed a few words which were not recorded.]
We can strike these things out. I do not want to spend time doing that, but this witness, it seems to me, is adopting, and has
adopted in the witness box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the
trial which he never gave a living soul, nor dead ones either. I respectfully submit that the witness be instructed to make
notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his
counsel to bring out.
THE PRESIDENT: I have already laid down the general rule which is binding upon this defendant as upon other witnesses. Perhaps we
had better adjourn now at this state.
Afterword
Jackson died in Washington, DC, at the age of 62 and, after funeral services in
Washington's National Cathedral and then in Jamestown's St. Luke's Church, was interred near his boyhood home in Frewsburg, New York.
Jackson was played by Alec Baldwin in the 2000 TNT television film Nuremberg, based on the novel Nuremberg: Infamy on Trial, by
Joseph E. Persico, which recounted the trial at which Jackson served as chief U.S. prosecutor.
An extensive collection of Jackson's personal and judicial papers is archived at the Manuscript Division of the
Library of Congress and open for research. Smaller collections are available at
several other repositories.
Statue of Justice Jackson in Jamestown, New York
Quotes
- "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the outcome of no elections." - Opinion for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624
(1943)
- "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of
opinion achieves only the unanimity of the graveyard." -Opinion in Barnette
- "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act
their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." -Opinion in
Barnette
- "We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war,
but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is
that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of
policy."
- "If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany
does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have
invoked against us." - Nuremberg Tribunal
- "We must never forget that the record on which we judge these defendants is the record on which history will judge us
tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well." - Nuremberg Tribunal
- "[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of
the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at
taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of
legislation, a difference which goes to the very root of religious freedom[...] This freedom was first in the Bill of Rights
because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was
intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep
bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public
policy or the public purse." - dissent in Everson v. Board of Education of
Ewing Township, 330 U.S. 1 (1947)
- "The Bill of Rights is not a suicide pact." (paraphrase and
well-known misquote of "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom,
it will convert the constitutional Bill of Rights into a suicide pact.") - comment in his dissent to Terminiello v. City of Chicago, 337 U.S. 1 (1949).)
- "But when notice is a person's due, process which is a mere gesture is not 'due process.'" Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950)
- "It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be
decided and collected by Caesar." From the dissent in Zorach v. Clauson, 343
U.S. 306 (1952)
- "The day that this country ceases to be free for irreligion it will cease to be free for religion - except for the sect that
can win political power." From the dissent in Zorach v. Clauson, 343 U.S. 306 (1952)
- "We are not final because we are infallible, but we are infallible only because we are final" - on the Supreme Court; opinion
concurring in judgement in Brown v. Allen, 344 U.S. 443 (1953).
- "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 hand of vengeance and voluntarily submit their captive enemies to the judgment of the law
is one of the most significant tributes that Power has ever paid to Reason." - Excerpt from Opening Statement at the
Nuremberg Trials, (1945)
External links
Wikiquote has a collection of quotations related to:
References
- ^ Schenck v. United States, 249 U.S. 47 (1919).
- ^ Id. at 49-51.
- ^ Dennis v. United States, 341 U.S. 494, 505-507. see also,
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
- ^ 249 U.S. 47, 52.
- ^ 341 U.S. 494
- ^ Id. at 582 (Douglas, J. Dissenting)
- ^ Id.
- ^ Id. at 495; see also, 54 Stat. 671.
- ^ Id. at 495-496.
- ^ Id. 570.
- ^ Id. at 565-566.
- ^ Id.
- ^ Id.
- ^ Id.
- ^ Id.
- ^ Id. at 564.
- ^ Id.
- ^ Id. at 564-565.
- ^ Id. at 568.
- ^ Id.
- ^ Id. at 568 n.12 (1951) (distinguishing Whitney v. California, 274 U.S. 357, 376 (1927) from Bridges v. State of California,
314 U.S. 252, 263 (1941)).
- ^ Id. at 568.
- ^ Id. at 570.
- ^ Id.
- ^ Id. at 510-511.
- ^ Erwin Chemrensky, Constitutional Law: Principles and Policies, 961, 962
(Aspen 2ed. 2002)
- ^ Martin H. Redish, Unlawful Advocacy and Free Speech Theory: Rethinking
the Lessons of The McCarthy Era, 73 UCINLR 9, 51 (2004).
- ^ see generally, William M. Wiecek, The Legal Foundation of Domestic
Anticommunism: The Background of Dennis v. United States, T 2001 Sup. Ct. Rev. 375, 429 (2001).
- ^ Id. at 429.
- ^ Id. at 434.
- ^ Justice William O. Douglas
wrote: “In the original conference there were only four who voted that segregation in the public schools was unconstitutional.
Those four were Black, Burton, Minton, and myself.” See Bernard Schwartz, Decision: How the Supreme Court Decides Cases, page 96 (Oxford 1996). Likewise,
Justice Felix Franfurter wrote: “I have no doubt that if the segregation cases had reached
decision last term, there would have been four dissenters – Vinson, Reed, Jackson, and Clark.” Id.
- ^ a b
Schwartz, Bernard (1988), "Chief
Justice Rehnquist, Justice Jackson, and the "Brown" Case", Supreme Court Review 1988 (1988): pp
245-267., <http://links.jstor.org/sici?sici=0081-9557(1988)1988%3C245%3ACJRJJA%3E2.0.CO%3B2-6>
- ^
Tushnet, Mark & Lezin, Katya, "WHAT REALLY HAPPENED IN BROWN V. BOARD OF EDUCATION",
Columbia Law Review 91: 1867
- ^
Jackson, Robert (March 15, 1954), Memorandum by Mr. Justice Jackson, vol. Brown
file, Robert H Jackson Papers, Library of Congress
