Justice Robert H. Jackson's Unpublished Opinion in Brown V. Board: Conflict, Compromise, and Constitutional Interpretation

By Parrish, Michael E. | The Journal of Southern History, February 2019 | Go to article overview

Justice Robert H. Jackson's Unpublished Opinion in Brown V. Board: Conflict, Compromise, and Constitutional Interpretation


Parrish, Michael E., The Journal of Southern History


Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation. By David M. O'Brien. (Lawrence: University Press of Kansas, 2017. Pp. xii, 220. $34.95, ISBN 978-0-7006-2518-5.)

From 1934, when he entered the Franklin D. Roosevelt administration as assistant general counsel for the Internal Revenue Service, until his death from heart failure on October 9, 1954, Robert Houghwout Jackson shot comet-like across the legal firmament: solicitor general of the United States, attorney general of the United States, associate justice of the Supreme Court, and chief American prosecutor of Nazi war criminals at the Nuremberg trials.

Justice Louis D. Brandeis once remarked that Jackson should be made '"Solicitor General for life'" (p. 12). On the Supreme Court under three chief justices (Harlan F. Stone, Fred M. Vinson, and Earl Warren). Jackson authored landmark opinions on freedom of speech and religious liberty, the scope of Congress's power to regulate commerce, and the limits of presidential authority to act without a legislative mandate in times of national crisis. He went toe-totoe with Justice Felix Frankfurter in the second flag salute case and won the debate hands down. He dissented in the second Japanese American relocation decision and scolded the majority for '"sanctioning ... a military expedient that has no place in law under the Constitution'" (p. 36).

Yet despite this meteoric career at the bar and bench, we still lack a first-rate biography of Jackson. Fortunately, we now have David M. O'Brien's excellent exploration of Jackson's farewell meditation on the role of the Supreme Court in U.S. democracy at a crucial moment in its history: his unpublished opinion in Brown v. Board of Education (1954), refined over six versions between the early summer of 1952 and the fall of 1954.

The posture of the various members of the Vinson and Warren Courts who confronted Brown I and Brown II (1955) has been well known for several decades, since the opening of their judicial papers and the publication of Richard Kluger's magisterial Simple Justice: The History o/Brown v. Board of Education and Black America's Struggle for Equality (New York, 1975). O'Brien now offers a meticulous examination of Jackson's evolving views on the cases and their relationship to those of his fellow justices.

Jackson's robust declaration in West Virginia State Board of Education v. …

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