Robert Jackson, John Roberts, and the "Law/Politics" Distinction

Mark Tushnet

I've just been reading the manuscript of William Wiecek's superb forthcoming volume in the Holmes Devise History of the Supreme Court, and found its reminder of what Robert Jackson had said in the Court's deliberations over Brown v. Board of Edcuation quite provocative, in light of the praise John Roberts heaped on Jackson (and the praise that was heaped on John Roberts for praising Jackson).

During the Court's deliberations, Jackson repeatedly said that a decision to overrule Plessy v. Ferguson had to result not from a legal judgment but from a sociological (sometimes, a political) judgment. What's important here is that Jackson did indeed join the majority in Brown, demonstrating, it would seem, that in his view it was (sometimes? often? always?) appropriate to rest a constitutional decision on a political rather than a legal judgment. Roberts, as noted, expressed his admiration for Jackson as a justice. Yet, during the confirmation hearings, Roberts repeatedly insisted that there was a serious distinction between law and politics, and that -- as I interpret his comments -- constitutional decisions should always rest on law, never on politics.

A couple of thoughts: (1) Oddly enough, Jackson has become an icon, who it is important to have on one's side no matter what one thinks. I should add that I'm not a Jackson enthusiast. He could get off a good literary line or two, but, frankly, he couldn't write a coherent opinion that hangs together from beginning to end. Just try to make sense of his opinion in Eisentrager, for example. Even worse, try to make sense of his opinion in Steel Seizure taken as a whole (what exactly is a court supposed to do when a case falls in the twilight zone of category 2 -- something? nothing?). And, worst of all, try to explain why he cast a vote on the merits in Korematsu given his view that anything the Court did would be bad (maybe he could cast a vote on the merits only because doing so was inconsequential, but if so one would like an explanation to that effect).

(2) Even people who think they endorse the law/politics distinction don't know what they mean in doing so -- or rather, "I endorse the law/politics distinction" means "I'm not William Brennan or Earl Warren" (and nothing more).
Posted 5:34 PM by Mark Tushnet [link]