Editing Robert H. Jackson (section)

==U.S. Supreme Court, 1941–1954==
On June 12, 1941, Roosevelt nominated Jackson as an [[Associate Justice of the Supreme Court of the United States|associate justice]] of the U.S. Supreme Court, to fill the vacancy created when [[Harlan Fiske Stone]] replaced [[Charles Evans Hughes]] as [[Chief Justice of the United States|chief justice]].<ref>{{cite web| title=Supreme Court Nominations (1789-Present)| url=https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm| publisher=United States Senate| location=Washington, D.C.| access-date=February 19, 2022}}</ref> Jackson was confirmed by the [[United States Senate]] on July 7, 1941,<ref name=RL33225>{{cite report| last=McMillion| first=Barry J.| date= January 28, 2022| title=Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President| url=https://sgp.fas.org/crs/misc/RL33225.pdf| publisher=Congressional Research Service| location=Washington, D.C.| access-date=February 19, 2022}}</ref> and took the [[Oath of office#Federal judiciary oaths|judicial oath of office]] on July 11, 1941.<ref>{{cite web| url=https://www.supremecourt.gov/about/members_text.aspx| title= Justices 1789 to Present| publisher=Supreme Court of the United States| location=Washington, D.C.| access-date=February 19, 2022}}</ref> On the Court, he was known for his eloquent writing style and championing of individual liberties.

In 1943, Jackson wrote the majority opinion in ''[[West Virginia State Board of Education v. Barnette]]'', which overturned a public school regulation making it mandatory to [[Flag salute|salute the flag]], and imposing penalties of expulsion and prosecution upon students who failed to comply. Jackson's stirring language in ''Barnette'' concerning individual rights is widely quoted. Jackson's concurring opinion in 1952's ''[[Youngstown Sheet & Tube Co. v. Sawyer]]'' (forbidding President [[Harry Truman]]'s seizure of steel mills during the [[Korean War]] to avert a strike), in which Jackson formulated a three-tier test for evaluating claims of Presidential power, remains one of the most widely cited opinions in Supreme Court history.{{ref needed|date=December 2024}}

===Feud with Hugo Black===
Justices Jackson and [[Hugo Black]] had profound professional and personal disagreements dating back to October 1941, the first term during which they served together on the Supreme Court. According to [[Dennis J. Hutchinson|Dennis Hutchinson]], editor of ''[[The Supreme Court Review]]'', Jackson objected to Black's practice of importing his personal preferences into his jurisprudence.<ref>{{Cite journal |last=Hutchinson |first=Dennis J. |date=1989 |title=The Black-Jackson Feud |url=https://www.journals.uchicago.edu/doi/10.1086/scr.1988.3109625 |journal=The Supreme Court Review |language=en |volume=1988 |pages=203–243 |doi=10.1086/scr.1988.3109625 |issn=0081-9557}}</ref> Hutchinson quotes Jackson as having remarked, "With few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties."<ref>Id. at 230.</ref> While Hutchinson points out that Jackson objected to Black's style of jurisprudence in such cases as ''[[Minersville School Dist. v. Gobitis|Minersville v. Gobitis]]'' (1940) and ''United States v. Bethlehem Steel'' (1942), Black's involvement in the ''Jewell Ridge'' case struck Jackson as especially injudicious.

In ''[[Jewell Ridge Coal Corp. v. Mine Workers]]'' (1945), the Supreme Court faced the issue of whether to grant the coal company's petition for a rehearing, on the grounds that the victorious miners were, in a previous matter, represented by Crampton P. Harris, who was Justice Black's former law partner and personal lawyer. Despite this apparent conflict of interest, Black lobbied the Court for a [[per curiam]] denial of the petition. Justice Jackson objected, with the result that Jackson filed a concurrence disassociating himself from the ruling and, by implication, criticizing Black for not addressing the conflict of interest. Jackson also strongly objected to Black's judicial conduct in ''Jewell Ridge'' for another reason. As Jackson later alleged, while Justice Murphy was preparing his opinion, Black urged that the Court hand down its decision without waiting for the opinion and dissent. In Jackson's eyes, the "...only apparent reason behind this proposal was to announce the decision in time to influence the contract negotiations during the coal strike" between the coal company and the miners, which were taking place at the time.<ref>Id. at 208.</ref>

Jackson probably regarded Black's conduct as unbecoming of a Supreme Court Justice in another related matter. On April 3, 1945, the Southern Conference for Human Welfare held a dinner, at which it honored Justice Black as the 1945 recipient of the Thomas Jefferson Award. [[Fred M. Vinson]] spoke at the dinner. While Jackson declined an invitation to the event, citing a conflict arising out of the fact that a number of leading sponsors of the dinner were then litigants before the Supreme Court, Black attended the dinner and received his award. Crampton Harris, counsel in two pending cases, ''Jewell Ridge'' and ''CIO v. McAdory'' (1945), was one of the sponsors.<ref>Id. at 236–37</ref>

Jackson later took these grievances public in two cables from Nuremberg. Jackson had informally been promised the Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and Roosevelt was dead. President [[Harry S. Truman]] was faced with two factions, one recommending Jackson for the seat, and the other advocating for [[Hugo Black]]. In an attempt to avoid controversy, Truman appointed Vinson. Jackson blamed machinations by Black for his being passed over for the seat, and publicly exposed some of Black's controversial behavior and feuding within the Court. The controversy was heavily covered in the press, casting the [[New Deal]] Court in a negative light, and had the effect of tarnishing Jackson's reputation in the years that followed.

On June 8, 1946, Jackson sent a cable to President Truman. Jackson's cable to Truman began with an insincere offer of congratulations to the President for his appointment of Vinson. However, the cable then quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, according to which Truman had appointed Fred Vinson, in part, to avert a resignation on the part of Justice Black. Rumors had been circulating in Washington that Black would resign in the event that Truman chose Jackson as [[Chief Justice of the United States|Chief Justice]] Stone's successor. "I would be loath to believe that you would concede to any man a veto over court appointments."<ref>Id. at 220.</ref> Jackson closed his cable by stating that he could not continue his service as an Associate Justice under Vinson if an associate "had something on [him]", which would disqualify him from serving, or if he, Truman, regarded Jackson's opinion in the ''Jewell Ridge'' case as a "gratuitous insult" to Justice Black.<ref name="ReferenceA">''Dennis v. United States''</ref>

After receiving a response from Truman in which he denied having given consideration to, or having even heard of, the rumor of Black's threatened resignation, Jackson rashly fired off a second cable to [[United States Congress|Congress]], on June 10. This cable stated Jackson's reasons for his belief that Justice Black faced a conflict of interest in ''Jewell Ridge'', from which he wrongfully, at least, in Jackson's eyes, did not [[Judicial disqualification|recuse himself]], and ended with Jackson's threat that if such a practice "is ever repeated while I am on the bench, I will make my ''Jewell Ridge'' opinion look like a letter of recommendation by comparison."<ref>Id. at 221.</ref>

===''Dennis v. United States''===
{{Main|Dennis v. United States}}

===="Clear and present danger" test====
{{Main|Clear and present danger}}
In 1919, the Supreme Court decided ''[[Schenck v. United States]]''.<ref>Schenck v. United States, 249 U.S. 47 (1919).</ref> In Schenck, the petitioners, members of the [[Socialist Party of America|Socialist Party]], were convicted of violating the [[Espionage Act of 1917]] for printing and distributing [[Flyer (pamphlet)|circulars]] asserting that American citizens had a right to oppose the draft during [[World War I]] because, among other things, it violated the United States Constitution.<ref>Schenck at 49–51.</ref> The ''Schenck'' decision promulgated the "clear and present danger test," which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed.<ref>''Dennis v. United States'', 341 U.S. 494, 505–507. see also, ''[[Brandenburg v. Ohio]]'', 395 U.S. 444, 447 (1969).</ref> Justice [[Oliver Wendell Holmes Jr.|Holmes]], writing for a unanimous court, affirmed the decision of the lower court positing:

<blockquote>We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done ... The question in every case is whether the words used are used in such circumstances, and are of such a nature as to create a "clear and present danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.<ref>249 U.S. 47, 52.</ref></blockquote>

====Background====
In 1951, the Supreme Court decided ''[[Dennis v. United States]]''.<ref name="ReferenceA"/> In Dennis, the petitioners were zealous [[Communism|Communists]] who organized for the purpose of teaching the "Marxist-Leninist Doctrine."<ref>''Dennis v. United States'' p. 582 (Douglas, J. Dissenting)</ref> The principal texts used to teach the doctrine were: ''History of the Communist Party of the [[Soviet Union]]''; ''Foundations of Leninism'' by [[Joseph Stalin|Stalin]]; ''[[The Communist Manifesto]]'' by [[Karl Marx|Marx]] and [[Friedrich Engels|Engels]]; and ''[[State and Revolution]]'' by [[Vladimir Lenin|Lenin]].<ref name="ReferenceA"/> The Petitioners were convicted for violating clause 2 and clause 3 of the Smith Act which, among other things, made it unlawful to conspire to organize a group which advocates the overthrow of the United States government by force or violence.<ref>''Dennis v. United States'' at 495; see also, 54 Stat. 671.</ref> The issue before the Supreme Court was "[w]hether either §2 or §3 of the [[Smith Act]], inherently, or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights ..."<ref>''Dennis v. United States'' at 495–496.</ref>

====Jackson's concurrence====
In ''Dennis'', Jackson concluded that the "clear and present danger test" should not be applied.<ref>''Dennis v. United States'' p. 570.</ref> To this end, Jackson analyzed: the effect Communism had outside the United States; the nature of Communists; and the problems with applying the test. Jackson's analysis can be summarized as follows:

On the effect that Communists historically had on foreign countries, Jackson analyzed their effect on [[Czechoslovakia]].<ref>''Dennis v. United States'' at 565–566.</ref> In Czechoslovakia, a Communist organization disguised as a competing political faction secretly established its roots in key control positions "of police and information services."<ref name="ReferenceA"/> During a period of national crisis, a clandestine Communist organization appeared and overthrew the Czechoslovakian government. Establishing control of mass communication and industry, the Communist organization's rule was one of "oppression and terror." Ironically, as Jackson points out, the Communist organization suppressed the very freedoms which made its conspiracy possible.<ref name="ReferenceA"/>

On the nature of Communists, Jackson characterized them as an extraordinarily dedicated and highly selective group, disciplined and indoctrinated by Communist policy.<ref>''Dennis v. United States'' at 564.</ref> The goal of Party members is to secretly infiltrate key positions of government, industry, and unions and to leverage their power once in such positions.<ref name="ReferenceA"/> Jackson goes on to say that, although "Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder," they "advocate force only when prudent," which "may never be necessary, because infiltration and deception may be enough."<ref>''Dennis v. United States'' at 564–565.</ref>

On the problems with applying the clear and present danger test in ''Dennis'', Jackson deemed significant that the test was authored "before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties."<ref name="Id. at 568">''Dennis v. United States'' at 568.</ref> Jackson believed that the application of the test should be limited to cases bearing strong enough likeness to those for which it was originally crafted – i.e., "...criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of Jehovah Witness school children to salute our flag."<ref name="ReferenceA"/> Expressing strong concern that the expansive construction the Court had recently given the test in ''Bridges v. California,''<ref>''Dennis v. United States'' at 568 n.12 (1951) (distinguishing ''[[Whitney v. California]]'' 274 U.S. 357, 376 (1927) from ''Bridges v. California'', 314 U.S. 252, 263 (1941)).</ref> Jackson asserted that the test provided Communists with "unprecedented immunities," while the "Government is captive in a judge-made verbal trap."<ref name="Id. at 568"/> Jackson goes on to describe the application of the test to Communists, when determining the constitutionality of the Smith Act facially, or as applied as one of "...apprais[ing] imponderables, including international and national phenomena, which baffle the best informed foreign offices and our most experienced politicians."<ref>''Dennis v. United States'' at 570.</ref>

Jackson concludes his First Amendment analysis in ''Dennis'' by asserting that:

<blockquote>The authors of the "clear and present danger test" never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.<ref name="ReferenceA"/></blockquote>

====Conclusion====
In the end, the Court applied its own version of the "clear and present danger test" in ''Dennis'',<ref>''Dennis v. United States'' at 510–511.</ref> essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine.<ref>Erwin Chemrensky, Constitutional Law: Principles and Policies, 961, 962 (Aspen 2ed. 2002)</ref> Jackson, however, as one commentator put it, expressed in ''Dennis'' (at least with regards to Communists) that, "when used as part of a conspiracy to act illegally, speech loses its First Amendment protection."<ref>Martin H. Redish, Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of The McCarthy Era, 73 UCINLR 9, 51 (2004).</ref>

===''Korematsu v. United States''===
{{Main|Korematsu v. United States}}

====Background====

Following the Japanese attack on Pearl Harbor on December 7, 1941, there was great suspicion surrounding Japanese-Americans, particularly those residing on the West Coast of the United States. Roosevelt issued [[Executive Order 9066]] on February 19, 1942, giving the [[United States Department of War|War Department]] permission to declare some zones "military zones" in which they could prohibit certain people from accessing prescribed areas. With this executive order, the War Department was able to declare that all United States citizens of Japanese ancestry were prohibited from areas in California that were deemed unsafe for Japanese-American habitation for national security purposes, and it forced them into internment camps.

[[Fred Korematsu]], born to Japanese parents on American soil, believed that this was an unconstitutional infringement on an individual's civil liberty. The question that came before the Supreme Court was whether the Executive and Legislative branches went beyond their war powers by depriving citizens of rights with no criminal basis.

====Jackson's dissent====

The Supreme Court decided that the President and Congress did not stretch their war powers too far by choosing national security over an individual's rights in a time of war. Justice Hugo Black wrote the majority opinion for this case, and Jackson wrote a dissenting opinion. The opening paragraph of Jackson's dissent illustrated his view of the case:

<blockquote>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.<ref name="BanksSmolla2010">{{cite book|url=https://books.google.com/books?id=KdQkk9J-P4oC&pg=PT463|title=Constitutional Law: Structure and Rights in Our Federal System|date=6 May 2010|publisher=LexisNexis|isbn=978-0-327-17509-4|pages=462–465|author1=William C. Banks|author2=Rodney Smolla|access-date=June 25, 2017|archive-date=August 19, 2020|archive-url=https://web.archive.org/web/20200819134621/https://books.google.com/books?id=KdQkk9J-P4oC&pg=PT463|url-status=live}}</ref></blockquote>

Jackson warned of the danger that this great allowance of executive power presented, through the War Department's ability to deprive individuals of their rights in favor of national security in time of war:

<blockquote>But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence 	before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military 	procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it.<ref name="BarnettKatz2014">{{cite book|url=https://books.google.com/books?id=06nfDgAAQBAJ&pg=PT706|title=Constitutional Law: Cases in Context|date=9 December 2014|publisher=Wolters Kluwer Law & Business|isbn=978-1-4548-2920-1|pages=705–707|author1=Randy E. Barnett|author2=Howard E. Katz|access-date=June 25, 2017|archive-date=August 18, 2020|archive-url=https://web.archive.org/web/20200818162128/https://books.google.com/books?id=06nfDgAAQBAJ&pg=PT706|url-status=live}}</ref></blockquote>

Jackson was not concerned in evaluating the validity of DeWitt's claim that the internment of Japanese citizens on the West Coast was necessary for national security purposes, but whether this would set a precedent of war-time racial discrimination that would be used to strip individual liberties.

<blockquote>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.<ref>{{cite book|url=https://books.google.com/books?id=3JCjZWrQjA4C&pg=PA229|title=Encyclopedia of Supreme Court Quotations|publisher=M.E. Sharpe|isbn=978-0-7656-1825-2|pages=227–231|year=2000|access-date=June 25, 2017|archive-date=August 18, 2020|archive-url=https://web.archive.org/web/20200818173504/https://books.google.com/books?id=3JCjZWrQjA4C&pg=PA229|url-status=live}}</ref></blockquote>

[[File:Warren Supreme Court.jpg|thumb|Robert H. Jackson, Associate Justice of the Supreme Court, in 1953: second from the left, in the back row. Also pictured are, from the left, in the bottom row: Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; William O. Douglas. In the back row, from left: Tom Clark; Robert H. Jackson; Harold Burton; Sherman Minton]]

===''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.

===Procedural due process===

Jackson was a staunch defender (along with [[Felix Frankfurter]]) of [[procedural due process]], for the [[rule of law]] that protects members of the public from overreaching by government agencies. One of his hymns to due process is often quoted:<ref>''Shaughnessy v. United States ex rel Mezei'', 345 U.S. 206, 224–25 (1953) (Jackson, J., dissenting)</ref>

{{blockquote|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 [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.}}

[[File:Prosecutor Robert Jackson at Nuremberg Trials.jpg|thumb|Chief U.S. Prosecutor at the International Military Tribunal, Nuremberg, Germany, Robert H. Jackson,1945-46]]