Justice Jackson and the Judicial Function

Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either “liberals” or “conservatives.” A second school poses the disagreement largely in terms of judicial “activism” as opposed to judicial “restraint.” It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading exponents of this view, says that the judicial activist “appears to experience a deep sense of personal responsibility for the immediate consequences of his judicial decisions.” He feels that the Court has a range of discretion, that there are alternatives available to him, and that “he must make the choice which will give the right result.” The activist does not pretend to exercise the power of judicial review in accordance with standards imposed by the legal system; he will apply formal legal concepts only if they assist him in reaching a desirable goal. On the present Court, Pritchett suggests, Justices Black and Douglas best reflect this “goal-orientation” of the activists. The proponents of judicial self-restraint see a justice at his best when he exercises the judicial power with restraint and prudence. This “functionally- oriented” view sees the Court “not as crusader or advocate but as one of the instruments of political and social accommodation and adjustment in a complicated governmental system.” Its stress “is not on securing a result conforming to the jurist’s own scheme of values but upon adherence to appropriate judicial standards and proper manipulation of judicial techniques.” Justice Frankfurter, Pritchett submits, is the modem leader of the restraint school, and his views are subjected to close scrutiny.

While Pritchett’s approach is basically sound, it does have the effect of obscuring the constitutional views of Justice Robert H. Jackson, who often seems to be regarded as a mere intellectual appendage of Justice Frankfurter. In contrast to his elaborate analysis of Frankfurter’s conception of the judicial function, Pritchett, writing before Jackson’s death, summarized Jackson’s judicial philosophy only briefly and then concluded, “The unpredictability of Jackson’s performance leads one to question whether he has developed any systematic theories about . . . the judicial function.” This cursory conclusion suggests the need for a deeper penetration into the general writings and judicial opinions of Justice Jackson to discover if he had an integrated philosophy concerning the judicial function, and to appraise the extent to which he was an advocate of judicial self-restraint. This study is an attempt to fill that need. Its intent is not to summarize Justice Jackson’s political and judicial career; it is rather an inquiry into his conception of the judicial function as applied to certain basic types of review situations. If we can determine this, we may have the key that will enable us to interpret his Supreme Court experience.