Justice Jackson wrote his most callous statements on race in his unpublished memos hashing out his position in Brown v. Board.

 

Jackson wanted to dissent because he thought that the court did not have the power that the NAACP was asking it to assume. According to notes by Jackson's assistant Elsie Douglas in the archives, at least Justice Harlan asked to see a copy of the March 15, 1954 prior to the release of the Brown decision on May 18, 1954.

 

Jackson started drafting his thoughts in December 1953, but only fragments of that draft exist. The first solid drafts arise on January 6, 1954, where he stated: "It seems instinctive with every race, faith, state or culture to resort to some isolating device to protect and perpetuate those qualities, real or fancied, which it particularly values in itself."

 

In wrestling with the limits of judicial authority in the United States, Jackson pondered the seismic shifts in American attitudes on race. "No informed person can be insensitive to the fact that the past few years have witnessed a profound change in the responsible and rational public opinion toward segregation and all related problems. The awful consequence of racial prejudice revealed by the post mortem upon the Nazi regime in Europe have caused a revulsion against the kind of racial feeling that was manifest in the Korematsu case."

 

Jackson's memos focus on whether or not the court has the power to desegregate schools, and whether or not a judicial decree would even matter. The March 1, 1954 version is not as a complete a statement as the March 15, 1954 version of this memo, Jackson lays out his most precise statements on race.

 

In Section IV, The Limits and Basis of Judicial Action, he traced the history of race relations as seen through the Supreme Court. "It is not, in my opinion, necessary or true to say that these earlier judges, many of whom were as sensitive to human values as any of us, were wrong in their own times."

 

While it seems optimistic to ask Jackson to critique Dred Scott as a manifesto for the KKK, one would hope that 100 years later, he would have the fortitude to label Taney's tweaking of the language of the enlightenment to justify slavery as patently wrong.

 

Jackson's respect for judicial precedent, founded on the mistaken historical assumptions of the differences between races, emerges in the next paragraph.

 

"It was that there were differences between the Negro and white races, viewed as a whole, such as to warrant separate classification and discrimination not only for their educational facilities but also for marriage," and a host of other public accommodations. Was Jackson blind to the illegality of education for blacks for much of American history, or did he merely chose to overlook this and purposely not reconcile the awful state of black schools with forced illiteracy?

 

Jackson:Part IV continued

 

Justice Jackson responded to New York lawyer Morris L. Ernst in kind: "I share your feelings," Jackson wrote back on November 18, 1936.

 

But he warned "we must not under-estimate the prestige of an Association that has a long tradition, that has a name which implies so much, that has a fairly dependable income of between $200,000 and $300,000, definite headquarters and established publication and a functioning organization."

 

Supreme Court watchers might call that a drafting guide for the type of organization Jackson might have wanted to build to challenge the ABA. Jackson feared the conservative influence would always dominate the bar; "this is inherent in the nature of the profession. But that does not excuse us for being so damned unintelligent in Boston."

 

Jackson invited Ernst to lunch in Washington. Two days later, November 20, 1936, Ernst replied with a short, twitter-esque response: "This ain't the Eighteenth Century. Elite leadership is swell. The real pressure has to come from below or the leadership goes sour."

 

Matching wits three days later, Jackson fired back: "The only purpose membership serves in an organization is to furnish a background for leaders to work against. Nothing fans out the chaff from the wheat in the legal profession like requiring a little original work. The moment a man begins to be original, he ceases to be conservative."

It doesn't appear that Jackson made it to the dinner in New York City, but Jackson's archive contains a small publication from the National Lawyers Guild entitled "Resolutions adopted at the First Annual Convention, Washington D.C., February 20-22, 1937."

 

The 12-page booklet contained resolutions calling for a lawyers' WPA project, expansion of civil liberties for immigrants and voting rights for "minorities." There is no mention of race in the program, and the ballot included with the program contains Jackson's unused ballot.

Jackson resigned from the National Lawyers Guild in May 27, 1940 because of communist influence in the New York and Washington, D.C. chapters. Associating with "reds" would have interfered with his rise through the Roosevelt administration. Roosevelt nominated Jackson to sit as an Associate Justice on the Supreme Court, on June 12, 1941. Jackson was confirmed on
July 11, 1942.

 

Jackson:Part III continued

 

This oral history with Harlan Phillips explored more of Jackson's school days. (The first three chapters of the interview are here as .pdfs: 1, 2, 3.)

 

Curiously, Jackson said "My schoolmates, of course, influenced me. They were mostly sturdy, clean fine young people and I had a close friendship with them." His description of his schoolmates does not specify race. It is probably fair to assume that if he did play with black children, he would have specified it.

 

Nor does the autobiography section about "Community Life and Ways" confront the issue of race. However, Jackson offers his interpretation of the Jamestown standard on poverty: "Everybody was expected to work. The only person who was not respected was the one who did not work." The working man or woman in the Jamestown of his youth had a hard life.

 

"It was really a democratic existence and a very individualistic one. Nobody asked favors except on the basis of repayment and there was a strong desire to avoid real poverty. Pauperism was regarded as sort of a moral judgment that one had wasted his opportunity." That statement begs the question: how would Jackson respond to the poverty of the post-reconstruction deep south, where racism worked to perpetuate the economic injustices of slavery on allegedly freed men?

 

Further in that paragraph, Jackson's exposition on his "pull yourself up by the bootstraps" theories did not touch on race. "To an unfortunate individual there was utmost kindness, but if one was a pauper that was probably his own fault. He either drank, or gambled, or was lazy, or something evil. Poverty, as such, attracted no sympathy and little help. The way of the poor was hard, but so was the way of the not poor."

 

Despite the arguments of sociological arguments about the impact if racism on black children (the famous black doll/white doll experiments by Kenneth Clark where black children chose the white doll over the black doll), it is hard to imagine that in Jackson's world "something evil" meant having black skin. While he did not dismiss Clark's experiments, he did not think they factored into equal protection analysis.

"I do not think that we can import into the concept of equal protection of the law psychological and subjective factors. I have no doubt that segregation has psychological consequences, but I know too that the woes of the colored child are by no means solved merely by forcing him into white company."

 

Jackson:Part IIcontinued

D espite Supreme Court Justice Robert Houghwout Jackson's desegregationist actions while serving in both the executive and judicial branches, he appears to have harbored the racist sentiment of his day, that blacks were different and inferior to whites.

 

Jackson served in the administration of Franklin Delano Roosevelt as Solicitor General and Attorney General, and then in 1941, President Roosevelt appointed him to the Supreme Court. While Jackson was scrupulous about avoiding conflicts of interest, as far as race goes, Jackson appears to have seen skin color as a sign of genetic inferiority.

 

As Jackson refused to tar his predecessors on the Supreme Court by questioning their racial bias, it may be arguably improper to root through Jackson's closet and find skeletons showing that he was an elite, white man of his time, viewing the "Negro" as benign, but handicapped by genetics. Jackson, then, seems a Justice who, had he been born 100 years earlier, would've voted with Justice Taney in Dred Scott.

 

Historical records reveal Jackson as a man with limited experienc with persons with different skin colors than his own. As a child growing up in western New York, Jackson lived a frontier-style existence on the family farm in Jamestown, according to a transcript of an interview he did in 1952 with Columbia University oral historian Harlan B. Phillips. The interview was in anticipation of an autobiography. (The first three chapters of the interview are here as .pdfs: 1, 2, 3. My favorite part of these is Jackson's own handwritten notes in the margins. A similar autobiographical history is here.)

 

Jackson's great grandfather, Elijah, was born in Litchfield, Connecticut on October 27, 1772. Elijah left Litchfield to become one of the first white settlers in a far western Pennsylvania town near the New York border, Spring Creek. Elijah struck camp on November 10, 1797. He made a living rafting timber to Pittsburgh.

 

Jackson: Part I continued...

 

Impressed with former New Jersey governor Christine Todd Whitman? I never thought I'd answer that question affirmatively.

 

But after listening to her speak last night in front of the World Affairs Council Executive Forum Event at the Hartford Club on Prospect Street in Hartford, I understood that while we disagreed on so many levels, we agreed on some basic precepts. Common ground is important to have to move forward.

 

Whitman is a socially liberal Republican who headed the Environmental Protection Agency from 2001 to 2003 under George W. Bush. In response to a question about cabinet level ministers having too much power, she suggested that some agencies, like the EPA, needed to become a Cabinet-level post.

 

This question has been floating around since Nixon created the EPA in 1970, and after the Exxon Valdez oil spill, it gained traction, but failed to go anywhere under Bush I. With the BP mess in Louisiana, it makes sense to bring it up again.

 

This wasn't the only place I agreed with Whitman. She resigned from the Bush Administration because she could not defend Cheney's thrust to ease air pollution laws which violated the Clean Air Act (first passed by a Republican - Dwight D. Eisenhower in 1955).

 

Nothing so progressive could have come out of the Bush White House, and indeed, it is unlikely we will see anything so progressive from the Obama administration. Oddly enough, again in 1972, Nixon appeased the tree huggers by signing the Clean Water Act.

 

Attorney Peter Kelly, founder of Hartford law firm Updike, Kelley & Spellacy, and the powerhouse lobbying firm Black Manafort, sounded a question to Whitman about the demise of collegiality within the political world. The Republicans have no moderates, he said.

 

Whitman agreed. She told the small crowd about how when she was thinking of running for governor again in 1997, there was a chance that she could run for U.S. Senate instead. Whitman visited DC to explore the option. She ditched the idea after meeting with members of the Republican Senate Campaign Committee, who told her "mention a word about campaign finance reform, and you'll never get a dime from us."

 

The extremism in politics creates a divide that prevents anything from happening, Whitman said. I agree, and I'll add that the categorization of views as extreme or moderate is a shifting sand that inhibits the dialogue.

 

Christine Todd Whitman in Hartford...