Date of Award
Master of Arts (MA)
Andrew W. Cohen
Judiciary, government, New Deal, legal philosophy
Constitutional Law | Legal History | United States History
Robert H. Jackson’s service as Solicitor General has attained mythic status, prompting academics and commentators consistently to rate him as one of the greatest appointees to that office. In part, his stature reflects his extraordinary skill as an attorney. In some measure, Jackson’s legend draws upon the Supreme Court’s growing liberalism, which occurred upon his watch. As Peter Ubertaccio argues in his history of the office, Learned in the Law and Politics, the stature of the Solicitor General suffered during the early 1930s, when the court generally ruled against the government, then improved as the court sided with the Roosevelt Administration later in the decade. But it also flows from the perception that Jackson was an “apolitical” official. In The Tenth Justice, a study of the Solicitor General during the Reagan administration, Lincoln Caplan approvingly cites Archibald Cox’s ranking of Jackson as one of the three most- respected Solicitors General in the history of the office. Disagreeing with Reagan’s policies, Caplan argues that the Reagan Solicitors General, Edwin Meese and Charles Fried, corrupted the office, once a bastion of impartiality. Though political scientists like Rebecca Mae Salokar have questioned this alleged historical independence of the office, the sense that Jackson was a figure above political considerations nonetheless survives. This thesis examines Jackson’s thinking during his tenure as Solicitor General by evaluating his non-judicial writings and speeches during the time he held the office of Solicitor General, specifically examining Jackson’s thinking regarding the roles of the elected branches of the federal government and the judiciary. Though Jackson styled himself as a non-partisan, professional Solicitor General, he was actually an ardent supporter of the New Deal constitutional revolution who played a significant role in “consolidating the new position.” Jackson assumed the office on March 5, 1938, nearly one full year after the Supreme Court of the United States ceased barring progressive and New Deal legislation. This change in constitutional interpretation gave Jackson and the Roosevelt Administration a Court more sympathetic to their views, allowing Jackson to explore the new limits of governmental power. Jackson gave a number of political speeches while serving as Solicitor General, was active in Democratic Party campaigns, and briefly contemplated running for governor of New York. When he did engage the politics of his day, he discussed judicial restraint and anti-trust issues as well as the general themes of Democratic Party politics. Jackson was a politically active Solicitor General. In the area of the intersection of electoral politics and the law, Jackson was a transitional figure. He formed a transition from lawyer-politicians like William Howard Taft, Charles Evans Hughes, and Hugo Black, and a later model of non-political legal and judicial service as a background for nomination to the Court. He saw the office of Solicitor General as incompatible with active participation in electoral politics. He later wrote that his enjoyment of the office was due to the insulation from the day to day political decisions in the Department of Justice and the administration as a whole. During his tenure as Solicitor General, Robert H. Jackson’s primary concern regarded the Supreme Court’s power to nullify acts of Congress or the states, limiting the ability of the democratically elected branches of government to deal with the crisis of the Depression. He saw this not just as a matter of efficiency of government but also as a threat to a democratic society, placed at risk for failure when it did not address fundamental social problems brought on by the Depression. Jackson’s pragmatic outlook and his embrace of judicial restraint inclined him to argue that the Court should uphold experimental economic legislation. Solicitor General Jackson was not a legal theorist but rather a legal craftsman who used the law as a tool to accomplish the goals of his client, the New Deal administration. He did not explore ideas in legal theory as they related to his office. Jackson saw classical legal thought as a theoretical construct that did not work well in the Depression leading him to be critical of those on the bench who were averse to experimentation in government. Jackson saw himself as one of those legal actors for whom practical consequences were the object to their work. Jackson, during his service as Solicitor General, thought and acted in concert with the philosophy put forth by Justice Oliver Wendell Holmes Jr. in The Common Law, that “the life of the law has not been logic: it has been experience.” Jackson expanded this philosophy from the Common Law to Constitutional Law.
Stamato, Nicholas John, "“Consolidating the New Position (1938-1940)”: A Study of the Tenure of Robert H. Jackson: March 5, 1938 to January 18, 1940" (2009). Dissertations - ALL. 419.