Robert H. Jackson (1892 – 1954)
United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954).
When the Court moved to Washington in 1800, it was provided with no books, which probably accounts for the high quality of early opinions.
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
He had a reservoir of learning, from which he drew gracefully and effortlessly. But the most marked quality of his judicial and non-judicial writing was not the ability to borrow an apt quotation or to find an idea well expressed by one who had written before him; it was the ability to think brilliantly in original and bold fashion and to express his thoughts in forceful and eloquent English of a style inimitably his own. His writing was pithy and pungent; yet he never sacrificed clarity of thought for a well-turned phrase. He was a master of the paradox; he had a great love of alliteration and his antithetical statements were gems. Yet his wit never descended to the frivolous; it always added a barb to the telling point. His wit was especially telling when turned upon himself or his Court.
Not every defeat of authority is a gain for individual freedom, nor every judicial rescue of a convict a victory for liberty.
Civil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, five or nine men in Washington could not long supply its want.
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
We granted certiorari, and in this Court the parties changed positions as nimbly as if dancing a quadrille.
A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.
I am entitled to say of that opinion what any discriminating reader must think of it---that it was as foggy as the statute the Attorney General was asked to interpret.
We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.
Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges.
I do not know whether it is the view of the Court that a judge must be thick-skinned or just thick-headed, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the "last infirmity of noble mind", it is frequently the first infirmity of a mediocre one.
For a century every contest with the Supreme Court has ended in evading the basic inconsistency between popular government and judicial supremacy.
Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.
He will live in the living law of the Constitution.
Reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.
We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.
The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.
For over a century it has been the settled doctrine of the Supreme Court that the principle of stare decisis has only limited application in constitutional cases. It might be thought that if any law is to be stabilized by a court decision it logically should be the most fundamental of all law -- that of the Constitution. But the years brought about a doctrine that such decisions must be tentative and subject to judicial cancellation if experience fails to verify them. The result is that constitutional precedents are accepted only at their current valuation and have a mortality rate almost as high as their authors.
Of course, such judicial misconstruction theoretically can be cured by constitutional amendment. But the period of gestation of a constitutional amendment, or of any law reform, is reckoned in decades usually; in years, at least. And, after all, as the Court itself asserted in overruling the minimum-wage cases, it may not be the Constitution that was at fault.