The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism

Donald Trump is asserting more executive power than any President since the Civil War. He would likely not only agree with that assessment but be proud of it. As a result, our constitutional republic is in great peril.

As I wrote recently:

What is at stake are the twin pillars of American democracy that for so long have defined the United States and staved off tyranny: federalism and separation of powers. In the words of the “Father of the Constitution,” James Madison, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Although Madison was discussing the separation of powers at the federal level, the same idea applies to federalism. As Justice Anthony Kennedy often pointed out, the founding fathers split the “atom of sovereignty” between the national government and the states to diffuse power in order to better protect the rights of the American people.

This term the Roberts Court is hearing numerous cases that will test the justices' fidelity to federalism, separation of powers, and, in lay terms, a government of checks and balances. Trump does not want Congress to be able to insulate the heads of independent agencies from the President’s unilateral wrath. He has disobeyed lower court judicial orders and castigated federal judges. He is using national military forces in American cities (all of them blue) against the will of local and state leaders. And he is using emergency powers to overstep the authority given to him by federal law to impose arbitrary and ever-changing tariffs as if he were the Chief Lawmaker instead of the Executive-in-Chief. 

Whether we are already in a constitutional crisis or just heading towards one, the Supreme Court, without "purse or sword," likely cannot prevent a President obsessed with wielding more power than our Constitution allows from doing so. But the Court does not have to enable the transition and might be able to slow it down enough for some combination of Congress, the states, and "We the People" to fight it more effectively. 

I do not know if the Roberts Court will put Constitution over Party. But if it wants to, it must do so through transparency, not false allegiances to fictional narratives about text and history. The cases mentioned above are about political power, the structure of government, and how we define ourselves as a country, not technical legal doctrines. And that is why the great Justice Robert Jackson would, as the kids say, like a word.

There are many forgotten Supreme Court justices. There are also historically important justices (Marshall, Holmes, Frankfurter, Black, Scalia, Kennedy, Roberts) who are divisive, and reasonable people can disagree about their legacies. But it is difficult to find people who would argue the importance or greatness of Justice Jackson. He was a political moderate who wrote thoughtful and lasting Supreme Court opinions. There are compelling reasons why he was chosen by President Truman to be the Chief Prosecutor of the Nazis at the Nuremberg Trials in 1945. He was selected for this role by Truman because he

saw in the Justice, the only American ever to have held the posts of Solicitor General, Attorney General and Supreme Court Justice, a man of presidential timber. Truman believed that the demands of Nuremberg would shine a light on Jackson at his best—intelligent, articulate and decisive. Truman believed Jackson was the most qualified person to assemble the prosecutorial team, draft the historic indictment against the Nazis, lead the prosecution, cross-examine the Nazis and, above all, voice the hopes and goals of a shaken but victorious civilized world, that a successful trial could deter the grave crimes that were committed in the name of racial purity and world domination.

And, as we will see, Justice Jackson was, more than anything else, a legal realist, and that is what we so desperately need today. (I am aware how much of a long shot this is with the Roberts Court, but desperate times call for desperate measures).

When President Truman seized the nation’s steel mills because he thought the impending nation-wide strike by steel workers would jeopardize our troops in South Korea, a Supreme Court with nine Democrats prohibited him from doing so. Although each justice in the majority wrote a separate opinion, only Justice Jackson’s has stood the test of time. This is what he said about the utility of textual/historical analysis in these kinds of cases (and remember today’s originalists claim that originalism has always been with us, just without a name, so Jackson was well aware of the doctrine):

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.

In voting against Truman, Jackson also rejected the emergency powers argument the President forcefully made:

[E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them… In the practical working of our Government, we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency…In view of the ease, expedition and safety with which Congress can grant…emergency powers, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

In addition to his important opinion in Steel Seizure, Justice Jackson also dissented in the infamous Korematsu case, in which the Court put its constitutional stamp of approval on the forced relocation of American citizens of Japanese descent into camps during World War II. Being a moderate pragmatist and realist, Jackson knew that it would have been extremely hard to prevent the president from taking that step given the war and the appropriate role of judges in our political system. But he also thought the Court should not affirm the constitutionality of the racist plan, so he said the following:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution…the Court for all time has validated the principle 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….

A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

Some may argue that Jackson's warning was overstated because Korematsu is one of our most discredited cases, and because Chief Justice Roberts said, in an unrelated case, that "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution." Maybe, but this statement is classic dicta, so underdetermined as to be practically meaningless, and came almost 75 years after Korematsu was decided. It would be  fair to suggest "too little, too late."

In any event, Justice Jackson’s insights in these two landmark cases are profoundly important today. First, imprecise text and contested history cannot supply answers to meet our current needs.

Second, the use of “emergency” powers by the President needs to be viewed skeptically unless clearly authorized by Congress or by an impending, inevitable disaster. (In the SCOTUS cases being argued today, Trump's Justice Department asserts that Congress authorized his tariffs by granting him emergency powers. However, as Mike explained on this blog on Monday, the International Emergency Economic Powers Act, which nowhere mentions tariffs or any synonym thereof, pretty clearly denies the president the power the administration claims it grants him).

Third, even if the justices cannot restrain a runaway President, they must not ratify his actions because the Court’s legal imprimatur carries great weight and can be used “as a loaded weapon” by future administrations.

The Roberts Court has been the most partisan Court in American history. Our current justices also purport to be devoted to both federalism and separation of powers. This term will bring those conflicting commitments into bright focus. Whatever the justices do, they should act like Justice Jackson and understand that these issues require great reflection about politics, power, and country, not unhelpful and misleading legal formalisms.

-- Eric Segall