Robert H. Jackson

We can afford no liberties with liberty itself.

Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was United States Solicitor General (1938–1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He is the only person in United States history to have held all three of those offices. He was also the chief United States prosecutor at the Nuremberg Trials.

Quotes

The office of the lawyer, however poorly filled, is too delicate, personal and confidential to be occupied by a corporation.
- "Functions of the Trust Company in the Field of Law", 52 New York State Bar Association Report 142 (1929)

Our people do not want barren theories from their democracy. Maury Maverick has expressed very quaintly, but clearly, what they really want when he says: 'We Americans want to talk, pray, think as we please — and eat regular'.
- Speech to the Commonwealth Club of San Francisco (1939), reported in Eugene C. Gerhart, America's Advocate: Robert H. Jackson (1958), p. 456

He loved his profession, he had a real sense of dedication to the administration of justice, he held his head high as a lawyer, he rendered and exacted courtesy, honor and straightforwardness at the Bar. He respected the judicial office deeply, demanded the highest standards of competence and disinterestedness and dignity, despised all political use of or trifling with judicial power, and had an affectionate regard for every man who filled the exacting prescription of the just judge. The law to him was like a religion, and its practice was more than a means of support; it was a mission. He was not always popular in his community, but he was respected. Unpopular minorities and individuals often found in him their only mediator and advocate. He was too independent to court the populace - he thought of himself as a leader and lawgiver, not a mouthpiece.
- Describing the unsung heroes of legal practice. "Tribute to Country Lawyers: A Review", 30 A.B.A Journal 139 (1944)

Often his name was, in a generation or two, forgotten. It was from this brotherhood that America has drawn its statesmen and its judges. A free and self-governing Republic stands as a monument for the little-known and unremembered as well as for the famous men of our profession.
- "Tribute to Country Lawyers: A Review", 30 A.B.A Journal 139 (1944)

The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.
- Thomas v. Collins, 323 U.S. 516 (1945) p. 323 U. S. 545

I used to say that, as Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…
- Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A Journal 801 (1951)

On your first appearance before the Court, do not waste your time and ours telling us so. We are likely to discover for ourselves that you are a novice but will think none the less of you for it. Every famous lawyer had his first day at our bar, and perhaps a sad one…. Be respectful, of course, but also be self-respectful, and neither disparage yourself nor flatter the Justices. We think well enough of ourselves already.
- Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A Journal 801 (1951)

Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. This is because thoughtful, bold and independent minds are essential to wide and considered self-government,
- Quoted by Z. Chafee Jr. Atlantic Monthly (January 1955)

When the Court moved to Washington in 1800, it was provided with no books, which probably accounts for the high quality of early opinions.
- The Supreme Court in the American System of Government (1955), p. 30

My philosophy has been and continues to be that [the Court] cannot and should not try to seize the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construction. While the line to be drawn between interpretation and legislation is difficult, and numerous dissents turn upon it, there is a limit beyond which the Court incurs the just charge of trying to supersede the law-making branches. Every Justice has been accused of legislating and every one has joined in that accusation of others. When the Court has gone too far, it has provoked reactions which have set back the cause it is designed to advance and has sometimes called down upon itself severe rebuke.
- The Supreme Court in the American System of Government (1955), p. 79

When we went to school we were told that we were governed by laws, not men. As a result of that, many people think there is no need to pay any attention to judicial candidates because judges merely apply the law by some mathematical formula and a good judge and a bad judge all apply the same kind of law. The fact is that the most important part of a judge's work is the exercise of judgment and that the law in a court is never better than the common sense judgment of the judge that is presiding.
- Reported in Eugene Gerhart, America's Advocate: Robert H. Jackson (1958), p. 289

Something happens to a man when he puts on a judicial robe, and I think it ought to. The change is very great and requires psychological change within a man to get into an attitude of deciding other people's controversies, instead of waging them. It really calls for quite a changed attitude. Some never make it - and I am not sure I have.
- Reported in Leon Friedman and Fred L. Israel, 4 The Justices of the United States Supreme Court 1789-1969, 2563 (1969)

"The Federal Prosecutor" (1940)

"The Federal Prosecutor", 24 J. Am. Judicature Soc'y 18 (1940) (Address delivered at the Second Annual Conference of United States Attorneys, April 1, 1940). Published by the Robert H. Jackson Center. Archived from the original on July 12, 2024.

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done- wanted crime eliminated-but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized department of justice. It is an unusual and rare instance in which the local district attorney should be superseded in the handling of litigation, except where be requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.

Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a. judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the eases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning, [sic!] What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria· political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so called "subversive activities." They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a "subversive activity," such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as "subversive" by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as "subversive" the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term "Republican" and the term "Democrat" were epithets with sinister meaning to denote persons of radical tendencies that were "subversive" of the order of things then dominant.

In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians. [...] In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

The Struggle for Judicial Supremacy: A Study in Crisis in American Power Politics (1941)

For a century every contest with the Supreme Court has ended in evading the basic inconsistency between popular government and judicial supremacy.
- P. vii

While the Declaration was directed against an excess of authority, the Constitution was directed against anarchy.
- P. 8

Of course, such judicial misconstruction theoretically can be cured by constitutional amendment. But the period of gestation of a constitutional amendment, or of any law reform, is reckoned in decades usually; in years, at least. And, after all, as the Court itself asserted in overruling the minimum-wage cases, it may not be the Constitution that was at fault.
- P. 297

Quotes from the Nuremberg Trials (1945-1946)

In 1945, at the request of President Franklin Delano Roosevelt, Justice Jackson took leave from the Supreme Court to act as a prosecutor in the Nuremberg trials of accused Nazi war criminals.

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.
- Statement by Justice Jackson on War Trials Agreement (12 August 1945)

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. 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.
- Opening Address to the International Military Tribunal at the Nuremberg Trials (10 November 1945)

If we can cultivate in the world the idea that aggressive war-making is the way to the prisoner's dock rather than the way to honors, we will have accomplished something toward making the peace more secure.
- Opening Address to the International Military Tribunal at the Nuremberg Trials (10 November 1945)

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.
- Opening Address to the International Military Tribunal at the Nuremberg Trials (10 November 1945)

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.
- International Conference on Military Trials, London, 1945, Dept. of State Pub.No. 3080 (1949), p. 330

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.
- Summation for the Prosecution, July 26, 1946

The plans of Adolf Hitler for aggression were just as secret as Mein Kampf, of which over six million copies were published in Germany. He not only openly advocated overthrowing the Treaty of Versailles, but made demands which went far beyond a mere rectification of its alleged injustices (GB-128). He avowed an intention to attack neighboring states and seize their lands, which he said would have to be won with "the power of a triumphant sword." Here, for every German to hearken to, were the "ancestral voices prophesying war."
- Summation for the Prosecution, July 26, 1946

Each of these men made a real contribution to the Nazi plan. Each man had a key part. Deprive the Nazi regime of the functions performed by a Schacht, a Sauckel, a Von Papen, or a Goering and you have a different regime. Look down the rows of fallen men and picture them as the photographic and documentary evidence shows them to have been in their days of power. Is there one who did not substantially advance the conspiracy along its bloody path toward its bloody goal? Can we assume that the great effort of these men's lives was directed toward ends they never suspected?
- Summation for the Prosecution, July 26, 1946

These men saw no evil, spoke none, and none was uttered in their presence. This claim might sound very plausible if made by one defendant. But when we put all their stories together, the impression which emerges of the Third Reich, which was to last a thousand years, is ludicrous. If we combine only the stories of the front bench, this is the ridiculous composite picture of Hitler's Government that emerges. It was composed of:
A No. 2 man who knew nothing of the excesses of the Gestapo which he created, and never suspected the Jewish extermination programme although he was the signer of over a score of decrees which instituted the persecution of that race;
A No. 3 man who was merely an innocent middleman transmitting Hitler's orders without even reading them, like a postman or delivery boy;
A Foreign Minister who knew little of foreign affairs and nothing of foreign policy;
A Field-Marshal who issued orders to the armed forces but had no idea of the results they would have in practice …
… This may seem like a fantastic exaggeration, but this is what you would actually be obliged to conclude if you were to acquit these defendants.
They do protest too much. They deny knowing what was common knowledge. They deny knowing plans and programmes that were as public as Mein Kampf and the Party programme. They deny even knowing the contents of documents which they received and acted upon. … The defendants have been unanimous, when pressed, in shifting the blame on other men, sometimes on one and sometimes on another. But the names they have repeatedly picked are Hitler, Himmler, Heydrich, Goebbels, and Bormann. All of these are dead or missing. No matter how hard we have pressed the defendants on the stand, they have never pointed the finger at a living man as guilty. It is a temptation to ponder the wondrous workings of a fate which has left only the guilty dead and only the innocent alive. It is almost too remarkable.
The chief villain on whom blame is placed — some of the defendants vie with each other in producing appropriate epithets — is Hitler. He is the man at whom nearly every defendant has pointed an accusing finger.
I shall not dissent from this consensus, nor do I deny that all these dead and missing men shared the guilt. In crimes so reprehensible that degrees of guilt have lost their significance they may have played the most evil parts. But their guilt cannot exculpate the defendants. Hitler did not carry all responsibility to the grave with him. All the guilt is not wrapped in Himmler's shroud. It was these dead men whom these living chose to be their partners in this great conspiratorial brotherhood, and the crimes that they did together they must pay for one by one.
- Summation for the Prosecution, July 26, 1946

It may well be said that Hitler's final crime was against the land he had ruled. He was a mad messiah who started the war without cause and prolonged it without reason. If he could not rule he cared not what happened to Germany. As Fritzsche has told us from the stand, Hitler tried to use the defeat of Germany for the self-destruction of the German people. He continued to fight when he knew it could not be won, and continuance meant only ruin... Hitler ordered everyone else to fight to the last and then retreated into death by his own hand. But he left life as he lived it, a deceiver; he left the official report that he had died in battle. This was the man whom these defendants exalted to a Fuhrer. It was they who conspired to get him absolute authority over all of Germany. And in the end he and the system they created for him brought the ruin of them all.
- Summation for the Prosecution, July 26, 1946

Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. … Nor is the lie direct the only means of falsehood. They all speak with a Nazi double meaning with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms "Final solution" of the Jewish problem was a phrase which meant extermination; "Special treatment" of prisoners of war meant killing; "Protective custody" meant concentration camp; "Duty labour" meant slave labour; and an order to "take a firm attitude" or "take positive measures" meant to act with unrestrained savagery. … Before we accept their word at what seems to be its face value, we must always look for hidden meanings. … Besides outright false statements and those with double meanings, there are also other circumventions of truth in the nature of fantastic explanations and absurd professions. … The record is full of other examples of dissimulations and evasions. Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justification — and I quote from the record: "I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth."
This was the philosophy of the National Socialists. When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue that habit of a lifetime in this dock? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same now. It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: "Say I slew them not." And the Queen replied, "Then say they were not slain. But dead they are..." If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.
- Summation for the Prosecution, July 26, 1946

"The Task of Maintaining Our Liberties: The Role of the Judiciary" (1953)

"The Task of Maintaining Our Liberties: The Role of the Judiciary", 39 A.B.A. J. 961 (1953).

For over a century it has been the settled doctrine of the Supreme Court that the principle of stare decisis has only limited application in constitutional cases. It might be thought that if any law is to be stabilized by a court decision it logically should be the most fundamental of all law -- that of the Constitution. But the years brought about a doctrine that such decisions must be tentative and subject to judicial cancellation if experience fails to verify them. The result is that constitutional precedents are accepted only at their current valuation and have a mortality rate almost as high as their authors.
- P. 962

There is no such thing as an achieved liberty; like electricity, there can be no substantial storage and it must be generated as it is enjoyed, or the lights go out.
- P. 962

Not every defeat of authority is a gain for individual freedom, nor every judicial rescue of a convict a victory for liberty.
- P. 964

New York Times Obituary (October 10, 1954)

A Government to perform even a minimum of service to its people, must take steps to suppress avarice, to strike down privately built-up schemes of economic exploitation or oppression, to uproot privilege, and to assure justice and economic opportunity to the masses.

It is Mr. Mellon's credo that $200,000,000 can do no wrong. Our offense consists in doubting it.

No longer may the head of a state consider himself outside of the law, and impose inhuman acts on the peoples of the world.
- Regarding the Nuremberg Trials

Judicial opinions

The power of citizenship as a shield against oppression was widely known from the example of Paul's Roman citizenship, which sent the centurion scurrying to his higher-ups with the message: "Take heed what thou doest: for this man is a Roman."
- Edwards v. California, 314 U.S. 160, 182 (1941)

The mere state of being without funds is a neutral fact — constitutionally an irrelevance, like race, creed, or color.
- Edwards v. California, 314 U.S. 160, 184 (1941)

It is hardly lack of due process for the Government to regulate that which it subsidizes.
- Wickard v. Filburn, 317 U.S. 131, 131 (1943)

There is no reason to doubt that this Court may fall into error, as may other branches of the Government. Nothing in the history or attitude of this Court should give rise to legislative embarrassment if, in the performance of its duty, a legislative body feels impelled to enact laws which may require the Court to reexamine its previous judgments or doctrine. [Footnote 52] The Court differs, however, from other branches of the Government in its ability to extricate itself from error. It can reconsider.
- Helvering v. Griffiths, 318 U.S. at 400-401 (1943).

This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.
- Douglas v. Jeannette, 319 U.S. 157, 181 (1943)

Civil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, five or nine men in Washington could not long supply its want.
- Douglas v. Jeannette, 319 U.S. 157, 182 (1943)

As to ethics, the parties seem to me as much on a parity as the pot and the kettle. But want of knowledge or innocent intent is not ordinarily available to diminish patent protection.
- Dissenting in Mercoid Corporation v. Mid-Continent Investment Co., 320 U.S. 661, 679 (1944)

A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.
- Ashcraft v. Tennessee, 322 U.S. 143, 161 (1944)

The physical power to get the money does not seem to me a test of the right to tax. Might does not make right even in taxation. To hold that what the use of official authority may get the state may keep, and that if it cannot get hold of a nonresident stockholder it may hold the company as hostage for him, is strange constitutional doctrine to me.
- International Harvester Co. v. Wisconsin Dept. of Taxation, 322 U.S. 435, 450 (1944)

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.
A citizen's presence in this locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four - the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason, but on parole - only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
- Dissenting in Korematsu v. United States, 323 U.S. 214, 242-45 (1944)

[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.
- Dissenting in Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)

I do not know whether it is the view of the Court that a judge must be thick-skinned or just thick-headed, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the "last infirmity of noble mind", it is frequently the first infirmity of a mediocre one.
- Craig v. Harney, 331 U. S. 367, 396 (1947)

The Court's reasoning adds up to this: The Commission must be sustained because of its accumulated experience in solving a problem with which it had never before been confronted! I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.'
- SEC v. Chenery Corporation, 332 U.S. 194, 213 (1947) (dissenting)

No one will question that this power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decision to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed.
- On the "war power"; Woods v. Cloyd W. Miller Co., 333 U.S. 138, 146 (1948) (concurring)

Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.
- Massachusetts v. United States, 333 U.S. 611, 639-40 (1948) (dissenting)

But we have grounds to assume also that the normal proportion of them are subject to that very human weakness, especially displayed in Washington, which leads men to "crook the pregnant hinges of the knee where thrift may follow fawning."
- Regarding persons employed by the government. Frazier v. United States, 335 U.S. 497, 515 (1948)

To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client—guilty or innocent—and that, in such a capacity, he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.
- Watts v. Indiana, 338 U.S. 49 (1949) (concurring in part and dissenting in part)

The choice is not between order and liberty. It is between liberty with order and anarchy without either. 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.
- Dissenting in Terminiello v. City of Chicago, 337 U.S. 1 (1949); this has sometimes been paraphrased as The Bill of Rights is not a suicide pact.

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)

But we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous.
- American Communications Association v. Douds, 339 U.S. 382, 438 (1950)

Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution.
- American Communications Association v. Douds, 339 U.S. 382, 439 (1950)

The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.
- American Communications Association v. Douds, 339 U.S. 382, 442-43 (1950)

I think that, under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone.
- American Communications Association v. Douds, 339 U.S. 382, 444 (1950)

I am entitled to say of that opinion what any discriminating reader must think of it — that it was as foggy as the statute the [[Attorney General was asked to interpret.
- Reviewing a position that Jackson had taken as Attorney General, which he now felt should be overruled. McGrath v. Kristensen, 340 U.S. 162, 176 (1950) (concurring)

But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion". If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all.
- Quoting Lord Westbury. McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (concurring)

The petitioner's problem is to avoid Scylla without being drawn into Charybdis.
- Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 250 (1951)

It is only the words of the bill that have presidential approval, where that approval is given. It is not to be supposed that in signing a bill the President endorses the whole Congressional Record.
- Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951)

Men are more often bribed by their loyalties and ambitions than by money.
- United States v. Wunderlich, 342 U.S. 98, 103 (1951)

Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges.
- Morissette v. United States, 342 U.S. 246, 276 (U.S. 1952)

We can afford no liberties with liberty itself.
- United States v. Spector, 343 US 169, 180 (1952) (dissenting)

Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (concurring)

No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (concurring)

He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.
- Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring)

Reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.
- Brown v. Allen, 344 U.S. 443, 540 (1953) (concurring)

We granted certiorari, and in this Court the parties changed positions as nimbly as if dancing a quadrille.
- Orloff v. Willoughby, 345 U.S. 83, 87 (1953)

I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.
- United States v. Public Utilities Commission, 345 U.S. 295, 319 (1953) (concurring)

But the validity of a doctrine does not depend on whose ox it gores.
- Wells v. Simonds Abrasive Co., 345 U.S. 514, 525 (1953)

The duty to disclose knowledge of crime rests upon all citizens.
- Stein v. New York, 346 U.S. 156, 184 (1953)

Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.
If it be conceded that in some way [that the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedure matters not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
- Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 224–25 (1953)

West Virginia State Board of Education v. Barnette (1943)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), was a case in which the United States Supreme Court held that members of the Jehovah's Witnesses could not be compelled to salute the flag of the United States.

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support.
- 319 U.S. 636

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.
- 319 U.S. 638

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.
- 319 U.S. 640-641

Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies.
- 319 U.S. 641

We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
- 319 U.S. 641

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
- 319 U.S. 641

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
- 319 U.S. 641-42

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.
- 319 U.S. 642

United States v. Ballard (1944)

United States v. Ballard, 322 U.S. 78, 95 (1944), was an appeal of the conviction of two leaders of the new religious "I AM" Activity movement for fraudulently seeking and collecting donations on the basis of religious claims that the defendants themselves did not believe. The United States Supreme Court held that the question of whether the defendants' claims about their religious experiences were actually true should not have been submitted to a jury. Jackson wrote the dissenting opinion.

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.
- 78 U.S. 92.

If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand, and are almost certain not to believe, him.
- 78 U.S. 93

I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that "Faith means belief in something concerning which doubt is theoretically possible." Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credibility than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches, and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.
- 78 U.S. 93-94

The chief wrong which false prophets do to their following is not financial... But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy, and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.
- The bolded section is often incorrectly reported as "The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish".
- 78 U.S. 94-95

Korematsu v. United States (1944)

Korematsu v. United States, 323 U.S. 214 (1944), was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship. Jackson wrote one of the three dissenting opinions.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here, he is not law-abiding and well-disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.

Zorach v. Clauson (1952)

Zorach v. Clauson, 343 U.S. 306 (1952) was a case in which the Court held that an arrangement by a school district of allowing students to leave school for part of the day to receive religious instruction was not unconstitutional. Jackson wrote one of the three dissenting opinions.

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.
- 343 U.S. 324-325

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.
- 343 U.S. 325

If we concede to the State power and wisdom to single out "duly constituted religious" bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those "duly constituted." We start down a rough road when we begin to mix compulsory public education with compulsory godliness.
- 343 U.S. 325

Quotes about Jackson

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Nature had given him a bright, strong mind--it was one of the best three or four, possibly five, of the Court during his years of service. It was a disciplined mind — self disciplined, and sharpened by the varied incidents of a general practice. He had attended no college. His engaging style, his easy acquaintance with good literature, he had acquired for himself. Even in his one year of law school, his training had been in practical subjects taught by practical men. The assurance and courage that come from professional mastery, that too he had won for himself. So he became an exemplar of the best virtues we attribute to our tough common-law system. He thought in terms of concrete operations: a good judge should feel responsible for the practicality of his judgments. He displayed, too, a constant concern that the Court's pronouncements convey to the practitioner a workable rule of conduct. To his fingertips, he retained a feel for active practice. This was the American lawyer at his best. What he made of himself is an inspiration and a challenge to all who follow his calling.
- Charles Fairman, "Associate Justice of the Supreme Court", 55 Columbia L. Rev. 486 (1955)

He will live in the living law of the Constitution.
- Charles Fairman, "Associate Justice of the Supreme Court", 55 Columbia L. Rev. 486 (1955)

His speech breaks through the printed page. He was one of those rare men whose spoken word survives in type.
- Felix Frankfurter, "Government Attorney: Foreword", 55 Columbia L. Rev. 437 (1955)

Self-reliance, good-humored tolerance, recognition of the other fellow's right to be and to thrive, even though you may not think he is as good as you are, suspicion of authority as well as awareness of its need, disdain of arrogance and self-righteousness, a preference for truculent independence over prudent deference and conformity - these were the feelings that shaped his outlook on life. He liked his kind without being sentimental about it; he was gregarious but shy about intimacies.
- Felix Frankfurter, "Government Attorney: Foreword", 55 Columbia L. Rev. 437 (1955)

As Attorney General, Solicitor General, and Assistant Attorney General,…he lost but a single case in the Supreme Court. Against [that] may be tallied some twenty-seven arguments which he won.
- Warner W. Gardner, "Government Attorney: Foreword", 55 Columbia L. Rev. 439 (1955)

He had a quiet courage, which never led to a bellow of defiance but which permitted him to take in every instance the action he thought best without discernible thought of criticism or personal injury. He was modest in manner, yet supremely confident of himself and his judgment. He had a calm which no crisis could disturb, and standards of honorable conduct which were both rigorous and unshakeable.
- Warner W. Gardner, "Government Attorney: Foreword", 55 Columbia L. Rev. 439 (1955)

Robert Jackson represented the advocate at his best. He possessed the rare combination of a good jury personality and the qualities of a profound lawyer. He knew how to talk persuasively to a jury of Chautauqua County farmers, yet he could argue the points of law involved in the case with great learning and with unanswerable logic, either before the trial judge or an appellate court. He had high standards of craftsmanship as a lawyer; he was thorough and painstaking in preparation.
- Philip Halpern, "Robert H. Jackson, 1892-1954", 8 Stanford L. Rev. 4 (1955)

He had a reservoir of learning, from which he drew gracefully and effortlessly. But the most marked quality of his judicial and non-judicial writing was not the ability to borrow an apt quotation or to find an idea well expressed by one who had written before him; it was the ability to think brilliantly in original and bold fashion and to express his thoughts in forceful and eloquent English of a style inimitably his own. His writing was pithy and pungent; yet he never sacrificed clarity of thought for a well-turned phrase. He was a master of the paradox; he had a great love of alliteration and his antithetical statements were gems. Yet his wit never descended to the frivolous; it always added a barb to the telling point. His wit was especially telling when turned upon himself or his Court.
- Philip Halpern, "Robert H. Jackson, 1892-1954", 8 Stanford L. Rev. 4 (1955)

The trial began with the grand, devastating opening address by the Chief American Prosecutor, Justice Robert H. Jackson. But I took comfort from one sentence in it which accused the defendants of guilt for the regime's crimes, but not the German people.
- Albert Speer, Inside the Third Reich, (1970) p. 513

Mr. Justice Jackson (1955)

"Mr. Justice Jackson" by Felix Frankfurter, 68 Harvard Law Review 938 (1955).\

To an unusual degree in the history of the Court, Justice Jackson wrote as he felt. In his case the style was the man….He wrote as he talked and he talked as he felt. The fact that his opinions were written talk made them as lively as the liveliness of his talk.

He had 'impish candor', to borrow one of his own phrases. Candor, indeed, was one of his deepest veins.

There was nothing stuffy about him and therefore, nothing stuffy about his writing.

No man who ever sat on the Supreme Court, it seems to me, mirrored the man in him in his judicial work more completely than did Justice Jackson.

External links

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Robert H. Jackson Center's web site
Jackson's Nuremberg Report
Discussion of the concept of supreme crime introduced by Justice Jackson, as chief prosecutor for the United States at the Nuremberg Trials, with applications to today.
Robert Jackson on Find-A-Grave