G.E. White
David and Mary Harrison Distin- guished Professor of Law
When I first broached the subject of a book on the Supreme Court Justice Robert Jackson to an editor with whom I have worked previously, she said I ought to consider why a book on Jackson would appeal to contemporary audiences. I found her response a bit disconcerting. Jackson was the primary architect and the chief Allied prosecutor in the Nuremberg trials, where the victors in World War II sought simultaneously to try Nazi leaders for war crimes and establish the legitimacy of Anglo-American procedural safeguards in criminal trials. He had written a dissent in Korematsu v. United States in which he maintained that the incarceration of Japanese-Americans on the West Coast for much of the Second World War, combined with the policy of not incarcerating German- and Italian-Americans, was a clear violation of the Equal Protection Clause. And he wrote opinions that have shaped modern constitutional law. His framework for evaluating the legality of executive actions laid out in Youngstown Sheet & Tube v. Sawyer is still a fixture of constitutional law classes and judicial opinions alike; and his conclusion in Johnson v. Eisentrager that enemies of the United States detained outside its borders in wartime lacked the power to challenge their confinement in civilian courts served as a justification for the post-9/11 policies in Guantanamo Bay.
But there was a good deal more to Jackson’s life and career. When he was appointed to the Court in 1941, he was the last Justice to serve who had primarily “read for the law” before being admitted to a state bar, having spent only one year in a special program at Albany Law School. Jackson had not attended college, either. He would spend the first twenty-one years of his career in general practice in Jamestown, New York, a relatively small community with a modest number of law firms. Yet by 1938, when Jackson was 46, he was Solicitor General of the United States; by 1940 was Attorney General in the Roosevelt administration; and by 1941 had been appointed to the Court.
So I thought there was a good deal in Jackson’s career that might interest audiences. The principal reason I wanted to do a book on Jackson, however, was that he was a compulsive writer, who recorded his experiences as he encountered them, and a packrat, who kept records of his communications with others over the course of his career. In the late 1980s, Jackson’s son and daughter donated most of his professional and personal papers to the Library of Congress. Those papers included two extensive documents detailing much of Jackson’s life, an “autobiography” he wrote in 1944, and an oral history memoir, consisting of a series of interviews with the Columbia University oral history project in 1952 and 1953, which Jackson completed editing just before his sudden death from a heart attack in October 1954. They also contained files of his Supreme Court cases and other cases with which he was involved in private practice or government service, correspondence with his son, daughter, and numerous public figures, and diaries from his time at Nuremberg.
I wanted to do a book in which I recounted Jackson’s reactions to experiences in his life and career he thought important, drawing on his Library of Congress papers, and then stepped back to suggest what those reactions said about Jackson as a lawyer, an intellect, and a person. The book was delayed for two years while the Library of Congress was closed because of the pandemic, but when it reopened, I was able to make use of the Jackson Papers through the help of student assistants and the law library. That enabled me to construct a narrative of Jackson’s life and career, featuring Jackson as commentator, that extended from his youth in western New York through his service at Nuremberg.
That narrative did not include, however, much of Jackson’s time on the Court, with one exception. After a falling out with Justice Hugo Black, he left an account of the incident that I found candid but also somewhat self-serving. There were, however, files of his cases, many of which contained successive drafts of Jackson’s opinions. I decided that I could piece together an account of Jackson’s service on the Court by employing a combination of descriptions of what the files contained and my analysis of Jackson’s opinions in the cases. I also decided that I should devote some time to Jackson as a writer: he is widely regarded as one of the most gifted writers to serve on the Court and during his career wrote six books, one when he was Solicitor General, two in connection with his service at Nuremberg, two as lectures he was asked to deliver by the Bar Association of the City of New York and Harvard University, and the last an incomplete biography of Franklin Roosevelt. Finally, I thought I should devote a concluding chapter to my assessments of Jackson as a lawyer, a judge, and a person. Jackson died in the apartment of his unmarried secretary, Elsie Douglas, and his relationship with Elsie and his wife, Irene Gerhardt Jackson, are clearly important elements in understanding him, although there is tantalizingly little evidence in the Jackson Papers.
I think of the book as a “portrait” of Jackson rather than a biography: one might be tempted to call it “Jackson on Jackson, with White looking on.” It has been an absolute pleasure to research and write. I don’t expect it to be out anytime soon: I’m just revising the latest draft after getting critical comments from colleagues, readers, and student assistants. I’m not all that sorry to have it around for a while yet.
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gewhite@law.virginia.edu