William & Mary Bill of Rights Journal Volume 5 (1996-1997) Issue 2 Article 4 May 1997 Loyal Lieutenant, Able Advocate: The Role of Robert H. Jackson in Franklin D Roosevelt's Battle with the Supreme Court Stephen R. Alton [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Repository Citation Stephen R. Alton, Loyal Lieutenant, Able Advocate: The Role of Robert H. Jackson in Franklin D Roosevelt's Battle with the Supreme Court, 5 Wm. & Mary Bill Rts. J. 527 (1997), https://scholarship.law.wm.edu/wmborj/vol5/iss2/4 Copyright c 1997 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj LOYAL LIEUTENANT, ABLE ADVOCATE: THE ROLE OF ROBERT H. JACKSON IN FRANKLIN D. ROOSEVELT'S BATTLE WITH THE SUPREME COURT Stephen R. Alton* Before his appointment to the Supreme Court,Justice Robert H. Jackson played a highly visible role in FranklinD. Roosevelt's failed "court packing plan. " Roosevelt's legislation would have increased the size of the Supreme Court and could have dramatically altered the functioning of our govern- ment. Jackson supported the plan from his post as Assistant Attorney Gener- al. This Article uses a chronological narrative to examine Jackson's role in Roosevelt's court fight. The Article examines his role in light of the sur- rounding history and the tension between the backers of the New Deal and the Supreme Court. Jackson's testimony before the Senate Judiciary Committee was widely viewed as the most effective representation which the plan received. Roughly contemporaneously with his Senate testimony, Jackson gave five public addresses, some before groups adamantly opposed to the plan. De- spite the poor prospects for the court legislation and his own ambivalence regarding the plan, Jackson worked loyally to sell Roosevelt's idea. This Article examines Jackson's often overlooked support of the court packing " Associate Dean and Professor of Law, Texas Wesleyan University School of Law; J.S.D. candidate, Columbia University School of Law. A.B., Harvard College, 1978; J.D., University of Texas School of Law, 1981; ED.M., Harvard University Graduate School of Education, 1986; LL.M., Columbia University School of Law, 1992. This article was written in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of Law, Columbia University. I would like to thank the following people for their helpful comments on earlier versions of this article: Dean Malinda Seymore; Phillip Robertson, .Esquire; Dean Walter Pratt; Dean Dennis Olson; Professor Julia Armstrong; and Judith Kuhn Alton, Esquire. I also would like to thank my dissertation advisor, Professor Eben Moglen, for his comments, advice, and guid- ance. In addition, I am grateful for the help given to me by the staff of the Manuscript Division of the Library of Congress, the Oral History Research Office of Columbia University, the Special Collections Division of the University of Virginia Library, and the Research Room of the Franklin D. Roosevelt Library. I also am grateful to the Oral History Research Office of Columbia University, the Library of the University of Vir- ginia, and William E. Jackson, Esquire for their generosity in permitting me to quote from certain unpublished works, and to Warner Gardner, Esquire, and the late Joseph Rauh, Jr., Esquire, for allowing me to interview them for this article. Finally, I grateful- ly acknowledge the financial support of the Lawrence A. Wien Foundation, whose gen- erosity permitted me to pursue my J.S.D. studies at Columbia University School of Law, and the financial support of Texas Wesleyan University, whose generosity facili- tated my research. WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 5:2 plan and provides considerable insight into the future Justice, illuminating both his strong political instincts and his blossoming abilities as an advo- cate. INTRODUCTION In 1934, Robert H. Jackson, future Associate Justice of the United States Supreme Court, left his home in Jamestown, New York and, at the age of forty-two, went to New Deal Washington to serve as general counsel of the Bureau of Internal Revenue.1 Jackson had established a successful law prac- tice in Jamestown and was involved in Democratic Party politics at both the local and state levels.2 Two years after his arrival in the nation's capital, the Western New Yorker transferred to the Department of Justice to become the Assistant Attorney General in charge of the Tax Division.' In January 1937, on the eve of President Franklin D. Roosevelt's announcement of his plan to "reorganize" the federal judiciary, Assistant Attorney General Jackson was asked to head the Justice Department's Antitrust Division.4 It was in this role that Jackson participated in the 1937 battle over Roosevelt's so-called "court packing plan." During the months that the fight raged (February to July), Jackson's official position continued to be that of Assistant Attorney General in charge of Antitrust. The Solicitor Generalship, the Attorney Gen- eralship, and the Supreme Court Associate Justiceship all lay in Jackson's future. He would serve in each of those capacities in turn, taking his seat on the Court in 1941.' Jackson's background distinguished him from many other New Dealers. Forty-two years old when he first arrived in the nation's capital, Jackson was neither an aging party hack nor one of the legion of Felix Frankfurter's young Turks.6 Instead, Jackson was a seasoned, canny, and successful trial attorney who, in the tradition of Louis D. Brandeis, had established his EUGENE C. GERHART, AMERICA'S ADVOCATE: ROBERT H. JACKSON 66-67 (1958). 2 Id. at 62-64. 3 Id. at 83-84. 4 Id. at 88; see Warner W. Gardner, Robert H. Jackson: 1892-1954--Government Attorney, 55 COLUM. L. REV. 438 (1955); William L. Ransom, Associate Justice Robert H. Jackson, 27 A.B.A. J. 478 (1941). 5 See GERHART, supra note 1, at 229-34. 6 As a professor at Harvard Law School during this period, Frankfurter sent many of his brightest young students to Washington to work for the New Deal. WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL: 1932-1940, at 64 (1963). For more on Frankfurter's efforts in this regard, see JEROLD S. AUERBACH, UN- EQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 167-73 (1976). 19971 LOYAL LIEUTENANT, ABLE ADVOCATE 529 professional reputation by representing small businesses.7 Largely self-edu- cated beyond the high school level, Jackson never attended college and spent only one year at a night law school;8 most of his legal training was acquired through an apprenticeship in a Jamestown law office.9 In the words of Warner Gardner, an attorney who worked closely with Jackson during the latter's tenure as Solicitor General, Jackson was "the ablest advo- cate to be drawn to Washington, and the foremost of the 'Roosevelt law- yers,' . [yet he] never served a day except in 'old line' agencies .... A lawyer he had been, and a lawyer he remained until he took his place on the Supreme Court."1 Jackson was an advocate, not a policy-maker. It was as the administration's case for reforming the an advocate that he presented 1 United States Supreme Court to the public and to Congress. ' It is undeniable that Jackson's rise from the Bureau of Internal Revenue to the Supreme Court (accomplished in a span of slightly more than seven years) was uncommonly rapid. Warner Gardner opined that "nobody in his- tory has ever risen as rapidly as he."' 2 Jackson's remarkably rapid rise is 7 GERHART, supra note 1, at 48-62. 8 Jackson attended Albany Law School. Id. at 34. 9 See Gardner, supra note 4, at 439; Ransom, supra note 4, at 480. 10 Gardner, supra note 4, at 438. " Auerbach summed up the paradoxes embodied in Jackson, the New Dealer: Robert H. Jackson was an unlikely New Deal lawyer. The prototypical New Deal- er was an upwardly mobile urbanite, a second-generation member of an ethnic minority group with superior academic credentials and, perhaps, some Wall Street experience. Jackson was the obverse: an upstate Protestant New Yorker who never attended college, attended but never graduated from Albany Law School, served an apprenticeship in a Jamestown law office, and incessantly preached the nineteenth-century virtues of the small-town practitioner: "hard work, long hours, and thrift." . The consummate advocate, he defended the New Deal as special counsel for the Securities and Exchange Commission, as assistant attorney general in the tax and antitrust divisions of the Justice Department, and as solicitor gener- al and attorney general. Regardless of office, Jackson remained the nineteenth- century liberal in the twentieth century; his anachronistic liberalism was conspicu- ous, yet as a New Dealer he seemed to march in step with the times. This was less paradoxical than might appear. His critique of the legal profession, a recur- ring theme in his public addresses, focused on the corporate lawyer as the person- ification of wrongdoing; for his was the animus of Main Street displaced profes- sionally by Wall Street. Jackson's New Deal colleagues, who voiced similar com- plaints, fired at the same target for different reasons. Theirs was the cry of con- temporary politics; his was the voice of nostalgic betrayal. AUERBACH, supra note 6, at 174-75. See generally id. at 174-76. Jamestown, incidental- ly, is in Western New York-not, strictly speaking, "upstate." Such misdescription of the town seems to be a common mistake.