Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation by David M. O'Brien (review)

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-to-toe 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farewell meditation on the role of the Supreme Court in U.S. democracy at a crucial moment in its history: his unpublished opinion in Brown v. Board of Education (1954), refined over six versions between the early summer of 1952 and the fall of 1954.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 of 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. Barnett (1943) about the Supreme Court's duty to act as the ultimate guardian of constitutional liberties, especially those embraced within the Bill of Rights, remains something of an anomaly within the entire corpus of his judicial career. A lawyer's lawyer who had endured the judicial overreach of the Charles Evans Hughes Court in the 1930s, Jackson usually remained cabined by his concern for procedural scruples and the limits of judicial power. If the spirit of tolerance had vanished from the hearts of the people, he observed, the courts could not save the country.

This skepticism about the Court's role in Brown v. Board of Education echoed throughout the six drafts of his unpublished opinion until its final iteration in 1954. Jackson would have preferred that Congress, not the courts, assume responsibility for ending racial segregation in public education and elsewhere through its authority under Section 5 of the Fourteenth Amendment, although he knew that remained impossible. At the same time, he doubted that this legislative failure alone justified judicial intervention.

Jackson criticized Chief Justice Warren's deployment of social science research in the now famous footnote 11 of Warren's Brown opinion. Jackson questioned whether the framers of the Fourteenth Amendment had ever intended to overturn racially segregated public schools and rejected the conclusions of Alexander M. Bickel and others that the historical record on that issue remained inconclusive. Congress, Jackson pointed out, had sanctioned segregation in the District of Columbia schools for more than one hundred years.

Above all, Jackson grappled with the problem that the Supreme Court had never overturned Plessy v...