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Monday, November 13, 2006

Chief Justice Roberts and... Justice Jackson?

As someone else at the Chief Justice's talk this evening, I found the discussion of his judicial role models rather interesting, especially his statement (if I have the language right) that he'd love to "write like Justice Jackson." Given his professed feelings toward the late Chief Justice Rehnquist, and Rehnquist's own adoration of Jackson, for whom he (Rehnquist) clerked, I wonder how much of this is the late Chief's influence and how much is Jackson, himself, influencing Chief Justice Roberts.  I guess I just wouldn't have immediately thought of Jackson as topping the list of the Court's great writers...

But I think Dan has captured the tone of the evening just right.  It is hard not to like the 17th Chief Justice, both in a large crowd and in the more intimate gathering in which I met him afterwards.  And for those watching at home, he had the whole crowd in stitches when he said that he "didn't think that anyone could tell Justice Scalia what to do." I probably won't agree with him any more tomorrow than I did yesterday, but it's really inspirational to see someone as thoughtful and introspective extolling the virtues of the profession that we've all chosen, especially those of us who teach...

Posted by Steve Vladeck on November 13, 2006 at 11:20 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I like to troll the law blawgs on weekends and bring interesting articles here. Since I spent the whole weekend in bed, I am a bit behind. PrawfsBlawg provides the first catch of the night with two reviews of a speech given by Chief Justice John R [Read More]

Tracked on Nov 15, 2006 8:33:04 PM


For what it's worth, the transcript now is available. The Chief's full comment:

I wish I could write as well as Justice Jackson writes. I wish I had as a prodigious an intellect as someone like Frankfurter or Holmes. I wish I was as good at bringing people together as both Justice Brennan and Justice Rehnquist were. But pulling all those different things together in one package is a lot to ask and I certainly don't think I can do that, but there are a lot of models to emulate in those different areas.

Posted by: Adam | Nov 17, 2006 6:20:33 PM

At a recent Q&A, Justice Scalia was asked if there were any justices whose writing ability he aspired to emulate. Without hesitation, he responded "Robert Jackson."

Posted by: Rob Vischer | Nov 15, 2006 12:35:19 AM

I think that you (like many) make the mistake of reading Eisentrager, Korematsu (concur.) and the other case through the lens of Youngstown. You'd do better to read Youngstown through the lens of Eisentrager/Korematsu (concur.). But I won't wade into that thicket now, lest I take this tangential point too far from the original post.

Posted by: Adam | Nov 14, 2006 10:02:59 AM

Adam -- I think you, like Goldsmith, are overreading Jackson's Quirin opinion vis-a-vis Youngstown. A lot changed in 10 years, and I think that Jackson's experience @ Nuremberg had a rather profound effect on his jurisprudence. That being said, I don't think Eisentrager is about "[r]espect for the separation of powers and other structural/institutional concerns." It's about bad people who the Court was tired of dealing with, and so the easiest way to make all of these cases go away was to say, once and for all, that they had no constitutional rights (especially given the D.C. Circuit's sweeping holding to the contrary).

Don't get me wrong -- I am, and always have been, a big Jackson fan, _except_ for Eisentrager. But even Black had his Korematsu...

Posted by: Steve Vladeck | Nov 14, 2006 9:38:54 AM

Incidentally, I must disagree with your assessment of Eisentrager. The sharp distinctions drawn by Jackson in Eisentrager, Youngstown, Korematsu, and the unpublished opinions in Quirin and Endo cut to the core of what makes him an interesting, conservative justice: Respect for the separation of powers and other structural/institutional concerns.

That aspect of his jurisprudence has been lost, unfortunately, by a generation's inappropriately broad reading of Youngstown (which Jackson saw to be a domestic-regulation (not Commander-in-Chief) case, but Jack Goldsmith's recent review of Quirin in the Green Bag may help to resolve the historical misunderstanding of Youngstown.

Posted by: Adam | Nov 14, 2006 9:12:14 AM

Don't forget the other vector of influence: Chief Justice Roberts also clerked for Henry Friendly, whose brand of conservative jurisprudence was markedly different from today's Textualists -- much more in line with Rehnquist, White, Jackson, and other non-Textualist conservatives.

For that reason, we may have in the Chief Justice the standard-bearer of the re-emerging non-Textualist conservative jurisprudence. Which is exciting, regardless of your personal jurisprudential allegiances.

And you're right, Orin, Roberts's admiration of Jackson is long-noted. See, e.g., http://www.tnr.com/doc.mhtml?i=20050801&s=rosen080105, http://new.stjohns.edu/media/3/223a26f638c74ff494a3bad229116779.pdf

But before Jackson is designated "best writer" by acclamation, let's not give short shrift to Oliver Wendell Holmes Jr.

Posted by: Adam | Nov 14, 2006 8:07:14 AM

I guess I'm a bit critical of Jackson (and his writing) because of the mess he made in Eisentrager... I definitely take Mike's point, though, about Barnette. It's also probably worth considering his various unpublished opinions, especially in Endo...

Posted by: Steve Vladeck | Nov 14, 2006 8:07:04 AM

I agree with Mike: Justice Jackson may be the Court's best writer. Also, my recollection is that in his nomination hearings, Roberts named Jackson as the Justice Roberts most admired.

I watched the bit on Nightline, but it was only about 5 minutes long altogether.

Posted by: Orin Kerr | Nov 14, 2006 2:18:48 AM

That's odd, Steve; I would have placed Jackson at the very top of my list. I think Barnette is probably the single most eloquent opinion in the history of the Court, and it's only one example of the talent Justice Jackson had with the English language. I'd say the only Justices who come close to his writing ability are Holmes, Brandeis, and (in a somewhat different way) Scalia. If his first Term is an indication, and I think it is, Roberts himself may well join that group.
I do certainly agree with you that the Chief Justice is extremely impressive and personable, and has a remarkable ability to encourage one's agreement with him just through his soft-spoken, thoughtful demeanor.

Posted by: Mike Dimino | Nov 14, 2006 12:24:37 AM

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