Monday, December 2, 2013

Justice Jackson's Square Deal

By Mark Houston
Mark Houston, a third year law student at Albany Law School, graduated from SUNY Buffalo where he studied Anthropology and Geology. Prior to law school, he was a project director for a cultural resource management firm for several years working closely with state, federal, and tribal agencies.
Presently, Mark interns with the Environmental, Health, and Safety Counsel at General Electric Power & Water. He is also the Vice-President for the Pro Bono Program at Albany Law School and an Editor-in-Chief for the student section of the New York State Bar Environmental Section's newsletter, The New York Environmental Lawyer.
Mark wrote this essay for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.

            A little over seventy-three years ago, future Supreme Court Justice Robert Jackson presented “A Square Deal for the Court.”[i]  While serving as United States Attorney General, Jackson presented his arguments in support of a shift in the Court’s analysis of constitutional issues.[ii]  
          Specifically, he supported the Court’s shift toward judicial restraint when interpreting legislation related to the “New Deal.”[iii]  While defending the Court’s shift, his argument proved oddly prophetic of the views of future justices in defending the court  and introspective as to the cyclical nature of the Court.
            In his address, Jackson came to the defense of the Court, foreshadowing the behavior of future justices of the Court.  His direct defense of the shift in the Court’s ethos has been repeated by many justices after him.  

            Not more than a quarter century after Jackson’s address, Associate Justice Rehnquist presented arguments against a living constitution.[iv]  Less than a century later, Justice Scalia attacked proponents of nonoriginalism during a lecture at the University of Cincinnati.[v]  While Justices Rehnquist and Scalia argued for more “conservative” paths of the Court, compared to Jackson’s justification of a more “liberal” Court, they all attempt to justify their positions in the eyes of the public.[vi]  
             In this way, the nature of Jackson’s address was prophetic of a future Court in which the justices seek to defend themselves in a more public and direct manner.  The sage-like prose of Justices Cardozo and Holmes, contemplating the philosophy of law, seems to have been swept aside for a more realistic discussion of the Court. 
            However, as Jackson touched on, the nature of the Supreme Court is also cyclical.[vii]  The Court’s philosophies ebb and flow with the changing of the Court’s composition.[viii]  In a broad, macroscopic view, the Court has always flowed between the “conservative” and “liberal” shores of our political landscape.
This is no clearer than in the shifts in the Court’s ideology over the last century.  Prior to the “New Deal” cases, the Court’s opinions were more in line with conservative views. Then, under President Franklin Roosevelt, the Court began to shift its use of interpretational tools to allow for more “liberal” policies.  
This “liberal” Court then waned under President Nixon, resulting in the more “conservative” Court of the late twentieth century.  In less than a century, the Court shifted from the bastion of one political ideology to another.
The Court does not go through these internal shifts without outside stimulus.  It is clear that the political environment affects the Court’s decisions.  There is no better example than “the switch in time that saved nine,” which occurred shortly before Jackson’s address.[ix]  It shows that the Court is intrinsically tied to the politics of its day.  
The “conservative” Court that arose in the last quarter of the twentieth century was a result of the conservative politics of that era.  As much as commentators and justices of the Court want to believe that the Court is independent, it is clear that the Supreme Court is very much influenced by societal pressures.  Opinions do not just flow from the Court, but also toward it.
Yet the statements that Jackson chose not to make are just as prophetic and introspective of the Court as the statements he did make.  In his defense of the Court’s opinions, Jackson failed to confront the pressure that President Roosevelt put on the Court to uphold the “New Deal” legislation.[x]  Jackson appears to have chosen to omit facts in his “objective” argument concerning the rationale behind the Court’s shift in interpretational methods.[xi]  
Jackson’s refusal to acknowledge the power of outside forces, and instead affirming the independent nature of the Court, is a tendency future justices would adhere to.  Even this, however, is subject to the cyclical nature of the Court.  For example, the Warren Court’s opinions clearly acknowledged that society outside the Court played a role in its decisions. 
The greatest truth of Justice Jackson’s argument is the nature of the Court.  The Court is cyclical and will move from one end of the political spectrum to the other.  The Court may serve the goals of one political group, only to shift its views in favor of another. 

[i] Robert H. Jackson, U.S. Att’y Gen., A Square Deal for the Court: An Address by Robert H. Jackson Attorney General of the United States at Boston College Law School (April 9, 1940)(transcript available at
[ii] Id. at 1.
[iii] See id. at 2.
[iv] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 693-94 (1976).
[v] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989).
[vi] See id.; Rehnquist, supra note 4.
[vii] Jackson, supra note 1, at 2.
[viii] Id.
[ix] “The switch in time that saved nine” refers to a purported shift in jurisprudence by Supreme Court Justice Owen Roberts in West Coast Hotel v. Parrish, (300 U.S. 379 (1937)) in order to appease President Roosevelt and stifle his court-packing plan.  See G. Edward White, West Coast Hotel’s Place in American Constitutional History, 122 Yale L.J. Online 69 (Sept. 24, 2012).
[x] See generally Jackson, supra note 1.
[xi] Id. at 2; Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (Sept. 13, 2012).