Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation

This is an extremely important book analyzing Justice Robert H. Jackson's (1892-1954) involvement in the Brown v. Board decision by the Supreme Court, authored by a leading scholar of the Court and its history. Unlike the classic book by Kluger, this is not a general history of the decision. Rather, its focus is on Jackson and the struggle he engaged in as to whether to publish a concurring opinion, and if so, what approach to take. The book tells us much about Jackson's career, his colleagues on the Court, his basic tenets in making decisions, and the considerations that guided writing his undelivered concurrence in Brown. We also get some solid insights into his relationship with William Rehnquist who served as his clerk, and the dispute about the famous Rehnquist memo that arose during his confirmation hearings, when he ascribed the memo's contentions to Jackson and not himself.The author begins with a discussion of Jackson, his background, incisive writing and speaking skills, DOJ career under FDR, career on the Court, stint as Nuremberg prosecutor, his books, and judicial philosophy. This is important background not only for this book, but also because we gradually have come to appreciate how great a Justice Jackson was. The second chapter focuses on the Court of which Jackson was a member between 1941 and his death in 1954. This period saw marked increase in individual opinions, both concurring and dissenting, particularly under Chief Justice Stone, as well as his successor Fred Vinson. The author discusses each of Jackson's often disruptive colleagues, their views on how to decide Brown, and the arrival of the new Chief Justice Earl Warren, a master of political persuasion who wanted an unanimous decision (which he got: 9-0. Clearly, Justices Frankfurter and Jackson were in no hurry to decide Brown, but the case progressed nonetheless.Chapter 3 discusses how Jackson ran his chambers and his relations with his clerks. Jackson, unlike most circuit and Supreme Court judges today, wrote the first draft of all his opinions, including 115 dissents and 46 concurrences. He wrote six drafts of his proposed Brown concurrence. A good portion of the chapter is devoted to the Rehnquist controversy, as well as Jackson's decision to withhold his concurrence.The real heart of the book, and what makes it a great Supreme Court book, is chapter 4 where the author undertakes to recreate the thinking process that Jackson endured as he authored his drafts. At the same time as he was so engaged, he also was writing his Harvard lectures on the Court ("The Supreme Court in the American System of Government"), so he was much concerned with thinking about some of the most fundamental issues regarding the Court. Should the Court take the lead in creating new policy or defer to Congress?; what role did what we would now call original intent play?; was the living constitution approach valid in this case to till in the "pregnant generalities" of the 14th amendment?; and was the famous footnote 11 based on sociological data a valid argument? As judicial restraint advocate, Brown really presented some difficult issues for him. In my opinion, the resulting stress may have played a role in causing the two heart attacks that soon killed him after the decision.The author has included the text of the final version of Jackson's undelivered opinion, the texts of Brown and Bolling, and an invaluable "Timeline and Background for Brown and Robert Jackson." Extensive notes and a helpful bibliography also are included, as is a table of cases. For anyone interested in the Court, Jackson, the Brown decision, or the fundamental revolution of which the case is a part, this book simply is indispensable.

Excellent service and quality book