Editing Robert H. Jackson (section)

===''Brown v. Board of Education''===
{{Main|Brown v. Board of Education}}

One of Jackson's [[law clerk]]s during 1952 – 53, [[William H. Rehnquist]], was appointed to the Supreme Court in 1971, and became chief justice in 1986. In December 1971, after Rehnquist's nomination had been approved by the [[United States Senate Committee on the Judiciary|Senate Judiciary Committee]] and was pending before the full Senate, a 1952 [[Bench memorandum|memorandum]] came to light that he had written as Jackson's law clerk in connection with the landmark case ''[[Brown v. Board of Education]]'' that argued in favor of affirming the separate-but-equal doctrine of ''[[Plessy v. Ferguson]]''. Rehnquist wrote a brief letter attributing the views to Jackson, and was confirmed. In his 1986 hearing, he was questioned about the matter. His explanation of the memorandum was disputed in both 1971 and 1986 by Jackson's former secretary, and scholars have questioned its plausibility. However, the papers of Justices Douglas and Frankfurter indicate that Jackson voted for ''Brown'' in 1954 only after changing his mind.<ref>[[William O. Douglas]] wrote: "In the original conference there were only four who voted that segregation in the public schools was unconstitutional. Those four were Black, Burton, Minton, and myself." See Bernard Schwartz, ''[https://books.google.com/books?id=Y5cUCl4hSWUC&dq=%22May+17,+1954%22+and+%22memorandum+for+the+file%22&pg=PA96 Decision: How the Supreme Court Decides Cases] {{Webarchive|url=https://web.archive.org/web/20160124231445/https://books.google.com/books?id=Y5cUCl4hSWUC&pg=PA96&ots=5UtEFgR-B5&dq=%22May+17,+1954%22+and+%22memorandum+for+the+file%22&num=100&sig=JrgkG7MAPIwfCPRBYYtwY9XULP4 |date=January 24, 2016 }}'', page 96 (Oxford 1996). Likewise, Justice [[Felix Frankfurter]] wrote: "I have no doubt that if the segregation cases had reached decision last term, there would have been four dissenters – Vinson, Reed, Jackson, and Clark."  Id.</ref>

The views of Justice Jackson about ''Brown'' can be found in his 1954 unpublished draft concurrence.<ref name="Schwartz">{{Cite journal
  | last = Schwartz
  | first = Bernard
  | title = Chief Justice Rehnquist, Justice Jackson, and the "Brown" Case
  | journal=Supreme Court Review
  | volume = 1988
  | issue = 1988
  | pages = 245–267
  | year = 1988
  | doi =10.1086/scr.1988.3109626
  | jstor=3109626| s2cid = 147205671
 }}</ref><ref>{{Cite journal
  | last1 = Tushnet
  | first1 = Mark
  | last2 = Lezin
  | first2 = Katya
  | title = What really happened in Brown v. Board of Education
  | journal=Columbia Law Review
  | volume = 91
  | issue = 8
  | pages = 1867–1930
  | year = 1991
  | doi =10.2307/1123035
  | publisher=Columbia Law Review, Vol. 91, No. 8
  | jstor =1123035  }}</ref><ref>{{Cite journal
  | last = Jackson
  | first = Robert
  | title = Memorandum by Mr. Justice Jackson
  | date = March 15, 1954
  | location = Library of Congress
  | volume = Brown file, Robert H Jackson Papers
  }}</ref> The "Memorandum by Mr. Justice Jackson, March 15th, 1954", is available with Jackson's papers in the [[Library of Congress]], but did not become publicly available until after Rehnquist's 1986 hearing for chief justice. Jackson's draft concurrence in ''Brown'', divided into four parts, shows how he struggled with how to write an effective opinion to strike down segregation. In Part 1 of Jackson's draft concurrence in ''Brown'', he wrote that he went to school where "Negro pupils were very few" and that he was "predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had." Despite his own opinions regarding desegregation, Jackson acknowledged the inability of the Court to "eradicate" the "fears, prides and prejudices" that made segregation an important social practice in the South. Jackson thus concluded that the Northerners on the Court should be sensitive to the conditions that brought segregation to the South.

In Part 2 of the draft [[Bench memorandum|memorandum]], Jackson described the legal framework for forbidding segregation in "Does Existing Law Condemn Segregation?". Jackson notes that it was difficult for the Court, which expected "not to make new law, but only to declare existing law," to overturn a decision of such longevity as ''Plessy''. Looking at the doctrine of [[original intent]] with regard to the [https://www.law.cornell.edu/constitution/amendmentxiv Fourteenth Amendment], Jackson found no evidence that segregation was prohibited, particularly since states that had ratified the Fourteenth Amendment had segregated schools at the time. Jackson concluded, "I simply cannot find in the conventional material of constitutional interpretation any justification for saying" that segregated schools violated the Fourteenth Amendment.

Part 3 of the draft memorandum, titled "Enforcement Power Limits", describes enforcement by Congress of the Fourteenth Amendment. Jackson addressed the possibility of leaving enforcement to Congress, particularly because the "courts have no power to enforce general declarations of law." Jackson noted that while segregation was already fading in some states, it would be difficult to overcome in those states where segregation was firmly established. While Jackson recognized the difficulties in the Supreme Court enforcing its judgment, he did not want the task to be left to the lower courts, as suggested by the Government. Jackson concluded that the Court must act because "our representative system has failed", and even though this "premise is not a sound basis for judicial action."

Finally, in Part 4 of the draft memorandum, "Changed Conditions", Jackson began by stating that prior to ''Brown'', segregation was legal. According to Jackson, the premise for overruling ''Plessy'' was the now erroneous "factual assumption" that "there were differences between the Negro and the white races, viewed as a whole." The draft asserted that the "spectacular" progress of African-Americans, under adverse circumstances, "enabled [them] to outgrow the system and to overcome the presumptions on which it was based." Jackson emphasized that the changed conditions, along with the importance of a public education, required the Court to strike down the concept of "separate but equal" in public education. While Jackson could not justify the decision in ''Brown'' in law, he did so on the basis of a political and social imperative. It is unknown if Jackson ever intended to publish this concurrence.

Jackson was in the hospital from March 30 to May 17, 1954. It is reported that Chief Justice Warren visited Jackson in the hospital several times, and discussed both Jackson's draft opinion and Warren's drafts. One suggestion that Warren took from Jackson was adding the following sentence: "Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world."<ref name="Schwartz"/> This quote is tied to the arguments in Part 4 of Jackson's draft opinion. On May 17, 1954, Jackson went to the Court from the hospital, so that he could be there the day that the ''Brown'' decision was handed down. When the ''Brown'' decision was handed down, a full court was present, to emphasize the unanimity of the decision. Robert H. Jackson died on October 9, 1954, and so there was not enough time between ''Brown'' and the death of Jackson to fully explore his views on desegregation.