Academic journal article Albany Law Review

Justice Jackson's Draft Opinions in the Steel Seizure Cases

Academic journal article Albany Law Review

Justice Jackson's Draft Opinions in the Steel Seizure Cases

Article excerpt

Mere moments into his introductory remarks at Judge Samuel Alito's Supreme Court confirmation hearings, after treading briefly across the familiar, weathered terrain of the abortion canon, Senate

Judiciary Committee Chairman Arlen Specter turned his attention to a half-century-old concurring opinion signed by a single Justice. (1) Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube Co. v. Sawyer (2)--also known as The Steel Seizure Cases--is, of course, no ordinary lone concurrence. As the nation debates the Constitution's limits on executive action in the global war on terror, Justice Jackson's opinion has grown ubiquitous in legal discourse. Indeed, each time word of unilateral executive action makes headlines, legal commentators now greet it with a one-word rebuttal: "Youngstown"--a word synonymous with the doctrine that the Constitution allows for unilateral Presidential action, even in a time of war, only on the rarest of occasions. (3) Of course, Youngstown is not the first case to become unmistakably identified with a particular legal doctrine--see Roe, Brown, Lochner, Marbury--and surely it will not be the last. But just as surely, it is the only example of the public embracing a lone concurrence on a first-name basis.

When an opinion establishes itself in the canon by commanding a Supreme Court majority ab initio, its authoritative nature is largely self-evident. But when an opinion that initially garnered the signature of no other Justice (4) comes to public prominence years after the fact, the font of its authority is not so easily found. Perhaps the legal community embraced Justice Jackson's opinion because the author--Attorney General to President Roosevelt and Nuremburg Prosecutor--spoke with particular authority on the subject. Perhaps it was because Justice Jackson's most decorated clerk, William H. Rehnquist, paid homage to Justice Jackson and to Youngstown in his own opinions, (5) writings, (6) and speeches. (7) Or perhaps it was simply because the opinion sets forth as constitutional law a restatement of pure political pragmatism, easily recognized by all students of politics.

But all the more interesting is the question of how the opinion's author came to embrace the ideas found in that opinion. Ironically, this question is perhaps easier to answer than was the last because Justice Jackson left behind a detailed paper trail. (8) These papers offer a fascinating vantage point on the evolution of Justice Jackson's views in the few weeks that the case was before the Court. They recorded his changing views not only of the tripartite framework for which the opinion is famous, but also of the World War II legacy of FDR, the nature of the Constitution's limitations on the government in general, and even the propriety of the Justice's participation in adjudicating the case with which he would come to be most closely identified. And these papers appear to begin, at least in part, with a single handwritten note summarizing a district court case cited only twice in this century.

I. THE CHRONOLOGY

The case that would become the fulcrum of war-powers jurisprudence (9) was the product of a drastically abbreviated schedule following the lower court proceedings. After brief stops at the district and circuit courts, the certiorari petitions were filed on May 2, 1952. (10) The Court granted the petitions the next day (11) and scheduled arguments for a mere nine days later, May 12-13. (12) Briefs were filed on May 10. (13) Justice Jackson did not waste time in committing ink to paper. His first typed drafts, preceded by undated handwritten outlines, are dated May 7 and May 8, (14) followed by drafts dated May 22 and 29, with varying amounts of written amendment, and an edited June 2 galley proof. The bench memo, written not by then-new clerk William Rehnquist, but by his senior, experienced co-clerk, George Niebank, is dated May 8. According to Rehnquist's account, neither clerk was aware of Jackson's position when the Court heard oral arguments. …

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