Ask the author: Justice Robert Jackson’s revealing thoughts and unpublished opinion in Brown v. Board of Education

The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. O’Brien’s  “Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board” (University Press of Kansas, 2017, pp. 220).

David O’Brien is the Leone Reaves and George W. Spicer Professor at the University of Virginia. He was a judicial fellow and research associate at the U.S. Supreme Court. O’Brien is the author of numerous books and over 100 articles, including “Storm Center: The Supreme Court in American Politics” (11th ed. W.W. Norton), which received the ABA’s Silver Gavel Award, and a two-volume casebook, “Constitutional Law and Politics” (10th ed., W.W. Norton 2017).

Welcome, David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book, which is quite extensive in its examination of Justice Robert Jackson’s views on Brown v. Board of Education.

* * *

However sympathetic we may be with the resentments of those who are coerced into segregation, we cannot, in considering a recasting of society by judicial fiat, ignore the claims of those who are coerced out of it….

My real difficulty is not with the conclusion [in the case], which is congenial to my own background and policy preconceptions. – Justice Robert H. Jackson (1953)

Question: How did you come to write this book?

O’Brien: When researching the first edition of Storm Center I came across Jackson’s unpublished opinion and found it so prescient about debates over “originalism” and, as Jackson put it, a “living constitution.” That was about 1985 and his papers had just been processed at the Library of Congress.

Question: You devote 10 pages to reproducing the final draft of Jackson’s unpublished opinion in Brown. Your account of the various drafts of that opinion introduces us to Jackson’s view of constitutional interpretation and his evolving thoughts on matters such as “original intent” versus a “living Constitution,” along with his understanding of the role of the Supreme Court and social change. As far as you know, has the opinion ever been published before? Why is it important?

O’Brien: Excerpts of the unpublished opinion were published in every edition of my casebook, “Constitutional Law and Politics: Vol. 2 Civil Rights and Civil Liberties.” Harvard Law School professor Mark Tushnet also included an excerpt in his edited book, “I Dissent: Great Opposing Opinions in Landmark Cases” (2008). But, of course, Jackson’s opinion was never intended as a dissent.

The opinion is important because it provides insight into a justice’s thinking about the greatest decision in the 20th century, unencumbered by the input or influence of a law clerk and it reveals much about and indeed anticipates later debates over constitutional interpretation, and remains timely and instructive today.

Question: As you discuss, Jackson crafted six draft opinions in Brown. Can you give us a brief overview of the evolution of his thinking in those drafts?

O’Brien:  Jackson had no doubt about the outcome. His first draft was written two days before the second round of oral arguments and specifically refers to “the decision we decide today” — almost six months before Brown came down.

Initially, Jackson hoped Congress would resolve the matter but gave up, acknowledging that the public and the political system could not own our “hypocrisies” about race. He increasingly concentrated on thinking through (conversing with himself) a constitutional justification for the ruling because he (correctly) feared the court’s decision would be challenged as too sociological (for which it was criticized, particularly for (in)famous footnote 11). He also anticipated the difficulties of overruling a precedent (Plessy v. Ferguson) that had legitimated “a way of life,” as well as the lengthy struggle over the matter of remedies, especially in light of the foreseeable pushback in the states.

Question: In Chapter 5 of your book, you say that Jackson was “principled,” but immediately thereafter you add that “he was also a realist and pragmatist.” Are you saying that he was a principled pragmatist? If so, what might that mean?

O’Brien: Yes, Jackson was a “principled pragmatist” in the sense that he defended constitutional principles but was not slavish in doing so; he was no “absolutist” like Justices Hugo Black and William Douglas. (See and compare Jackson’s 1943 opinion in West Virginia Board of Education v. Barnette, and other cases dealing with claims by the Jehovah’s Witnesses, with his 1949 opinion in Terminello v. Chicago on the scope of First Amendment protection of freedom of speech, observing that “the Constitution is not a suicide pact.”)

Question: As you note, Jackson hoped to become chief justice (as did Black). Given the makeup of the court at the time, and had he lived longer, how effective do you think Jackson might have been as a chief justice?

O’Brien:  He would have been effective, given his wit and charm, but also would have encountered conflict (as did Chief Justice Fred Vinson) with Black and Douglas.

Question: Vinson died unexpectedly of a heart attack on September 8, 1953, before any ruling had been released in Brown. Many have speculated about whether the vote, or even the result, in the case might have been different had Vinson lived longer. Where do you come down on this matter and why?

O’Brien:  This is discussed in Chapter 2, which makes clear that the outcome would have been the same, based on a study of all the justices’ and their law clerks’ papers. Much of the history of the decision-making in Brown done in the 1970s and 1980s was misleading, incomplete or simply wrong because scholars did not have or look at all of the justices’ private papers.

Question: Why was Brown a problematic case for Jackson? Was it the history of the 14th Amendment? The Plessy v. Ferguson precedent from 1896? The result the court reached? Brown’s implementation?

O’Brien: Jackson was equally troubled  by three concerns. First, after examining the “original intent” of the 14th Amendment and finding no support for the court’s proposed ruling, he then turned “from words to deeds” as a possibly more reliable source of the original public understanding of the amendment. Having done so, he found that approach no more helpful — that period in history was simply a confused and deplorable time. He ultimately concluded that the Constitution had not changed but the country had — in terms of acknowledging interracial intimacies and recognizing the demands of public education (for both whites and blacks). Second, he questioned the justification for discarding Plessy’s 1896 “separate but equal” ruling not only because it had sanctioned a “way of life” for over half a century, but because the number of students and school districts affected by the ruling in Brown far exceeded those affected by the earlier rulings in the 1950s admitting one or two students into graduate or law school (Sweatt v. Painter and McLaurin v. Oklahoma State Regents). And third, the latter concern about the breadth of the decision in Brown deeply disturbed him, as well as other justices. There was the predictable problem of fashioning a remedial decree that would provide flexibility. While such a judicial decree would upend social taboos against interracial intimacies, it would also invite a widespread pushback to the court’s ruling in Brown – what to do?

Question: In his unpublished opinion in Brown, Jackson wrote:

It is hard to find an indication that any of the influential body of the movement that carried the Civil War Amendments had reached the point of thinking about either segregation or education of the Negro as a current problem, and harder still to find that the Amendments were designed to be a solution. If we turn from words to deeds as evidence of purpose, we find nothing to show that the Congress which submitted these Amendments understood or intended to prohibit the practice here in question.

By contrast, in his 1990 dissent in Rutan v. Republican Party of Illinois, Justice Antonin Scalia argued:

[T]he Fourteenth Amendment’s requirement of “equal protection of the laws,” combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century the principle of “separate-but-equal” had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our most historically respected Justices.

Are these two statements in opposition to one another? If so, which originalist view do you think to be the stronger one?

O’Brien: Jackson’s understanding, as is clear in the unpublished opinion, of the 14th Amendment was certainly more accurate, honest and candid than Scalia’s revisionist view of the “original public understanding” of the amendment. Jackson repeatedly stresses that Congress funded segregated schools in the District of Columbia both before and after the ratification of the 14th Amendment, as well as admitted representatives of the Confederate states who ratified the amendment and yet continued maintaining (or later embraced) racially segregated schools.

Question: How do you think Jackson would have ruled in Brown II, in which the Supreme Court ordered that desegregation be implemented “with all deliberate speed”?

O’Brien: Jackson would have signed on to the 1955 remedial decree (had he lived) because, like all of the other justices, he saw the need for flexibility in implementation; like others too, he underestimated the amount of time it would take to achieve “integration” — to move, as he put it, from one world to another — from a world of white supremacy to one of equal dignity and respect.

Question: William Rehnquist was a law clerk to Jackson during October Term 1952. In his book “The Supreme Court,” Rehnquist wrote: Jackson “requested that I come to Washington on February 1, 1952, and plan to serve as his clerk from then until June 1953. I was surprised and delighted to receive this offer, and accepted it immediately.” You have a somewhat different view of this matter. Can you say a few words about it?

O’Brien: Based on Rehnquist’s correspondences with Jackson (which are at the Hoover Institution and the Library of Congress), it is clear that he “embellished” the matter in his book and in fact doggedly pursued the clerkship, until Jackson finally relented and took him on.

Question: In his 1952 memo to Jackson concerning Brown, Rehnquist wrote:

Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction. If this Court, because its members are ‘liberal’ and dislike segregation, now chooses to strike it down, it differs from the McReynolds court only in the kind of litigants it favors and the kinds of special claims it protects.

In his 1971 confirmation hearing to become an associate justice and again at his 1986 hearing to become chief justice, Rehnquist argued that his memo represented Jackson’s views. In a 1971 letter sent to Senate Judiciary Committee Chairman James O. Eastland, Rehnquist stated: “I am satisfied that the memorandum was not designed to be a statement of my views on these cases.”

Can you briefly explain why Rehnquist claimed that the views expressed in his memo were not his but rather Jackson’s?

O’Brien: Rehnquist’s memo argued that Plessy’s holding should be reaffirmed, and at his confirmation hearings as an associate justice and then as chief justice in 1976 and 1986, he simply distorted or lied about the memo’s reflecting Jackson’s views (As indicated above, Jackson in the very first draft indicated he supported the eventual outcome in Brown.). The undeniable fact that  Rehnquist distorted or simply lied is clear from primary and secondary sources cited in Chapter 3.

Question: You write: “[W]ithout any doubt, in 1971 and 1986 Rehnquist at the very least misled and misrepresented whose views his memo represented, if not outright lied.” That is a serious charge. On what do you base it?

O’Brien: As suggested above, it is obvious from both primary sources (correspondence in Jackson’s and Rehnquist’s papers) and secondary sources — works by Richard Kluger, “Simple Justice” (2004),  and John Dean, “The Rehnquist Choice” (2002).

Question: You also discuss Rehnquist’s 1953 memo in Terry v. Adams, the state-action white-only pre-primary election case. There, the court, in an 8-1 ruling, held that the combined election procedures of the Jaybird Democratic Association and the Democratic Party deprived black citizens of the right to vote. Could you briefly describe that memo and explain why you think it sheds light on Rehnquist’s Brown memo?

O’Brien:  The Terry memo was written by Rehnquist, as was that in Brown, and expressed his distaste or lack of sympathy for desegregation and civil rights efforts. And again the memo was contrary to Jackson’s own thinking and eventual vote. University of Chicago Law School professor Dennis Hutchinson wrote an excellent article about this memo and how it further discredits Rehnquist’s testimony.

Question: You remind your readers that Judge Learned Hand criticized the Brown decision in his 1958 Oliver Wendell Holmes Lecture. In light of that, can any justice today attain greatness if he or she has contested, for whatever reasons, the outcome in Brown?

O’Brien: To borrow from Isaiah Berlin’s famous essay, Hand, like Jackson, was a “hedgehog” who believed that equal protection should apply across the board to all segregated public accommodations, unlike Justice Felix Frankfurter, a “fox” who always tried to avoid or minimize the Supreme Court’s rulings on controversial legal/political issues, like Brown.

Today, no one on the left or the right would deny the legitimacy of Brown. But what is even more remarkable is how liberal/progressive and conservative/originalist scholars now seek to justify Brown and 1967’s Loving v. Virginia (striking down miscegenation laws) on the grounds of the “original public understanding” of the 14th Amendment. They do so only by distorting the history of the amendment or by abandoning history in a quest for a higher level of generality in the application of the 14th Amendment. In doing so, both sides fail to face facts. Jackson, by contrast, held otherwise and concluded that the Constitution had not changed, but the country had in terms of interracial intimacy and public education. And that justified the court’s ruling.

So, in answer to your question, no one today — on the left or the right — would contest the canonical ruling in Brown, but that is because they — judges and scholars alike — are all Machiavellian in their reading of history and constitutional interpretation.