Story by Ken Krayeske • 9:45 AM EST
Jackson visited Egypt in December 1945. On their way home from the necropolis at Luxor, Jackson and his crew encountered an Egyptian funeral.
Justice Jackson wrote his most callous statements on race in his unpublished memos hashing out his position in Brown v. Board.
Jackson wanted to dissent because he thought that the court did not have the power that the NAACP was asking it to assume. According to notes by Jackson's assistant Elsie Douglas in the archives, at least Justice Harlan asked to see a copy of the March 15, 1954 prior to the release of the Brown decision on May 18, 1954.
Jackson started drafting his thoughts in December 1953, but only fragments of that draft exist. The first solid drafts arise on January 6, 1954, where he stated: "It seems instinctive with every race, faith, state or culture to resort to some isolating device to protect and perpetuate those qualities, real or fancied, which it particularly values in itself."
In wrestling with the limits of judicial authority in the United States, Jackson pondered the seismic shifts in American attitudes on race. "No informed person can be insensitive to the fact that the past few years have witnessed a profound change in the responsible and rational public opinion toward segregation and all related problems. The awful consequence of racial prejudice revealed by the post mortem upon the Nazi regime in Europe have caused a revulsion against the kind of racial feeling that was manifest in the Korematsu case."
Jackson's memos focus on whether or not the court has the power to desegregate schools, and whether or not a judicial decree would even matter. The March 1, 1954 version is not as a complete a statement as the March 15, 1954 version of this memo, Jackson lays out his most precise statements on race.
In Section IV, The Limits and Basis of Judicial Action, he traced the history of race relations as seen through the Supreme Court. "It is not, in my opinion, necessary or true to say that these earlier judges, many of whom were as sensitive to human values as any of us, were wrong in their own times."
While it seems optimistic to ask Jackson to critique Dred Scott as a manifesto for the KKK, one would hope that 100 years later, he would have the fortitude to label Taney's tweaking of the language of the enlightenment to justify slavery as patently wrong.
Jackson's respect for judicial precedent, founded on the mistaken historical assumptions of the differences between races, emerges in the next paragraph.
"It was that there were differences between the Negro and white races, viewed as a whole, such as to warrant separate classification and discrimination not only for their educational facilities but also for marriage," and a host of other public accommodations. Was Jackson blind to the illegality of education for blacks for much of American history, or did he merely chose to overlook this and purposely not reconcile the awful state of black schools with forced illiteracy?
In the next sentence, Jackson refuses to criticize his predecessors for their decisions. "Certainly in the 1860s and probably throughout the 19th century the Negro population as a whole was a different people than today." Such gross generalizations seem the stuff stereotypes survive on. Jackson went on to sound subscribed to or afflicted by Kipling's white man's burden.
Jackson wrote: "Lately, freed from bondage, they had little
opportunity as yet to show their capacity for education or even self-support and management. There was strong belief in heredity, and the Negro's heritage was then close to primitive. Likewise, his environment from force of circumstances was not conducive to his mental development."
If this was a euphemism for confronting the laws that prevented slaves from schooling, Jackson might have been more straightforward. But at the same time, Jackson's opinions on the attitudes of prior Justices shows that he may have seen those laws as necessity, rather than derogatory. Jackson, though, recognized that the "Negro" has a capacity for education.
"Indeed, Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man." But his recognition casts the "Negro" as a subspecies, as less than human, as if moving up the evolutionary scale from Neanderthal to Negro to White. Jackson continues: "It is that, indeed, which has enabled him to outgrow the system and to overcome the presumptions on which it was based. The handicap of inheritance and environment has been too widely overcome today to warrant these earlier presumption."
The charitable interpretation of this statement cannot be reconciled with the entire context of this passage in his memorandum. The sentences that follow are just as damningly unenlightened for a man of Jackson's stature. "I do not say that every Negro everywhere is so advanced, nor would I know whether the proportion who have shown educational capacity is or is not in all section similar. But it seems sufficiently general to require me to say that mere possession of colored blood, in whole or in part, no longer affords a reasonable basis for a classification for educational purposes and that each individual must be rated on his own merit."
This is a circumspect, almost pained, backwards way of arriving at the Jeffersonian dictate that "All men are created are equal." Jackson did not appear to think that whites and blacks shared a genetic makeup. In retrospect, could the famous, and much maligned Rehnquist memo have either come from Jackson's pen, or been a sentiment which Jackson shared?
After several months convalescing in a hospital, recovering from a heart attack and various ailments, Jackson left the hospital on May 18, 1954 and headed straight for the Supreme Court. He joined the bench for Chief Justice Earl Warren's reading of the unanimous Brown decision, which outlawing racial segregation in schools.
After the publication of Brown, another friend, Herbert Bayard Swope, invited Jackson on June 30, 1954 to come to the annual dinner of the Freedom House in New York City for the unveiling of a plaque commemorating the momentous occasion.
Swope, a journalist famous for not just inventing the "op-ed" page, but for coining the term "Cold War," was chairman of the Executive Committee of the Freedom House. The Freedom House letterhead listed board members like Ralph J. Bunche, Mrs. Kermit Roosevelt, Ferdinand Pecora and Roy Wilkins.
About two weeks later, Jackson demurred. He replied to Swope: "I think the Court has only done its duty and nothing beyond the line of duty and that it hardly becomes the Justices to participate in a memorial to their own work."