Story by Ken Krayeske • 9:00 AM EST
Gordon Dean, one of Jackson's assistants in prosecuting the Nazis at Nuremburg, took a moment of fun one evening where the American legal team was billeted to put a comb to his mouth, and pretend to be Hitler.
Justice Jackson responded to New York lawyer Morris L. Ernst in kind: "I share your feelings," Jackson wrote back on November 18, 1936.
But he warned "we must not under-estimate the prestige of an Association that has a long tradition, that has a name which implies so much, that has a fairly dependable income of between $200,000 and $300,000, definite headquarters and established publication and a functioning organization."
Supreme Court watchers might call that a drafting guide for the type of organization Jackson might have wanted to build to challenge the ABA. Jackson feared the conservative influence would always dominate the bar; "this is inherent in the nature of the profession. But that does not excuse us for being so damned unintelligent in Boston."
Jackson invited Ernst to lunch in Washington. Two days later, November 20, 1936, Ernst replied with a short, twitter-esque response: "This ain't the Eighteenth Century. Elite leadership is swell. The real pressure has to come from below or the leadership goes sour."
Matching wits three days later, Jackson fired back: "The only purpose membership serves in an organization is to furnish a background for leaders to work against. Nothing fans out the chaff from the wheat in the legal profession like requiring a little original work. The moment a man begins to be original, he ceases to be conservative."
It doesn't appear that Jackson made it to the dinner in New York City, but Jackson's archive contains a small publication from the National Lawyers Guild entitled "Resolutions adopted at the First Annual Convention, Washington D.C., February 20-22, 1937."
The 12-page booklet contained resolutions calling for a lawyers' WPA project, expansion of civil liberties for immigrants and voting rights for "minorities." There is no mention of race in the program, and the ballot included with the program contains Jackson's unused ballot.
Jackson resigned from the National Lawyers Guild in May 27, 1940 because of communist influence in the New York and Washington, D.C. chapters. Associating with "reds" would have interfered with his rise through the Roosevelt administration. Roosevelt nominated Jackson to sit as an Associate Justice on the Supreme Court, on June 12, 1941. Jackson was confirmed on
July 11, 1942.
In other contexts, the Supreme Court might consider it impolite to divine the motivations of executive branch agency leaders, yet it is more than likely that Jackson's disdain for the ABA more than his love of the "Negro" fueled the desegregation of the DC Bar Association library.
This view of Jackson becomes more credible considering that seven years later, he still owned land impaired by racially-restrictive covenants. Some might argue he had a do-as-I-say, not-as-I-do approach that would have had no impact on his decision to maintain an investment in land encumbered by racially-restrictive covenants.
Jackson was one of three Justices to sit out the decision in Shelley v. Kraemer, the case outlawing whites-only covenants running with the land. Angry citizens wrote Jackson criticizing him for being a racist and chastising him for his cowardice in recusing himself.
One Roy C. Carter of Berkeley, California on January 16, 1948 sent a Western Union telegram: "The perpetraters of the massacre of the Jews in the ghetto in Warsaw ... have been vindicated by your decisive actions today."
A Philadelphian who was editor of a Presbyterian publication for
youth, also compared the substance of the case the Nuremberg. "Does the word 'Caucasian' have a sweeter sound in legal ears than 'Nordic'?" Clyde M. Allison wrote, and then compared Jackson to Pilate washing his hands.
A woman, Charle Brooks Eaton, sent Jackson the AP clippings from the Detroit Free Press discussing how Jackson, Justice Stanley Reed and Justice Wiley B. Rutledge "left their places on the bench when cases involving the issue were called for an argument."
Ms. Eaton's two-page typewritten letter, dated January 16, 1948, amazingly enough, provides talking points for modern day talk show hosts: "It is no longer a question of 'discrimination' against the negroes up here, but rather one of discrimination against the decent, law-abiding and self respecting white population, in favor of the negro."
None of the three constituents merited a response from Jackson, but the journalist Irving Brant deserved a little more respect. On January 26, 1948, Brant wrote to Justice Reed, cc'ing Jackson on the letter, and asked why the recusal.
Brant also sent Jackson a personal letter, informing Jackson of his new book, James Madison the Nationalist. This biography is now considered the seminal work on Madison.
Jackson wrote to Brant: "The papers have published the fact that property in which I have an interest is encumbered by covenants of this character." The covenants had advantages and disadvantages, Jackson continued, but the value overall of the interest seemed questionable.
Paramount for Jackson was the appearance of propriety. It must be that "members of the court who render the decision are not open to the charge that they have been serving their own financial interests."
So while Jackson owned whites-only land, many affluent towns of the day were sundown towns. This is not to excuse Jackson's investment in real property encumbered by racial restrictions, but to note that he was a man of his time. Even Connecticut had sundown towns, places like Darien that excluded blacks and Jews.
And though Jackson tried to not let this appearance of financial gain impact his jurisprudence, it is difficult to reconcile his desegregation of the library with his holding of whites-only land. Could it be he was more concerned with the public perception that his judicial opinion would be tainted by greed than racism?