Destroyers for Democracy / SCOTUS Legacy

Review by Bill Doughty

U.S. and British sailors examine destroyers prior to transfer in 1940.

It's hard to imagine the depths of fear and fascism washing over the world in the wake of the Great Depression and approach of war in the 1930s, a fear that intensified in 1941 when Imperial Japan attacked Pearl Harbor and Hitler declared war on the United States.

America had sided with Great Britain, with President Franklin D. Roosevelt providing 50 World War I navy destroyers to fight German submarines in exchange for the use of military bases on British territories in the Caribbean and western Atlantic.

The man who made that deal happen, despite entering a "sea of troubles" was new U.S. Attorney General and head of the Department of Justice, Robert Houghwout Jackson.

Jackson's story, intertwined with FDR's, is captured in "That Man: An Insider's portrait of Franklin D. Roosevelt" by Robert H. Jackson, edited and introduced by John Q. Barrett (Oxford University Press, 2003). Barrett cobbles together Jackson's manuscript with Jackson's oral history narrations and adds key documents and explanations.

The destroyers for bases deal, including the behind-the-scenes machinations between FDR and Churchill, will be interesting to Navy readers. So will Jackson's insider insights as WWII became a reality.

By the summer of 1941 Hitler had crushed Poland, Denmark, Norway, Belgium, the Netherlands, Luxembourg, France, Yugoslavia and Greece. Jackson writes:

"By June 15, conquest and demoralization had so far subdued France that the French fleet, under the ambiguous Admiral Jean Francois Darlan, seemed likely to be surrendered and thus added to the German and Italian navies. Churchill again cabled Roosevelt ... The specter of overwhelming German naval power, added to her seemingly irresistible air and land forces, deeply troubled the President. If the Germans should capture the French fleet, it – with Germany's own and that of Italy, and with probably cooperation from Japan – would leave the United States to face alone a most formidable naval and air power. But in the early days of July, Britain, defying what seemed to be forces as inexorable as fate and risking alienation fo the French people, boldly attacked and largely disabled the French fleet so that it could no longer be of any substantial service to Hitler. Britain won not only our admiration for her courage and audacity but our gratitude as well."

By the way, a great movie released last year, highly recommended, is "The Darkest Hour," directed by Joe Wright, written by Anthony McCarten and starring Gary Oldman as Winston Churchill. It's a slice of history as Churchill deals with challenges and the need for toughness in his first weeks as Prime Minister. Churchill was elected to the position after serving as First Lord of the Admiralty, the U.S. counterpart to Secretary of the Navy.

In "That Man" Jackson shows the back and forth between Churchill and FDR. 
"Churchill," Jackson writes, "seemed not to comprehend the very different constitutional and political position of President Roosevelt, who was bound by a written Constitution separating executive from legislative power and putting in Congress the control of disposal of government property."

Churchill reads

Eventually, Jackson worked out a legal transaction that helped both nations and navies. His artful deal assisted European Allies at a critical time and helped set the stage for American involvement in the war.

"That Man" gives us a front-row seat to the impact of the attack on Hawaii of Dec. 7, 1941 and its reverberations across the world to the White House.

"I think Pearl Harbor was a great shock to the President – that with all the war talk there had been, he did not believe Japan would make a surprise attack. Of course it was a great embarrassment to him ... How long the war would last and what the prospects were, I did not have much opinion. I was baffled. Our intelligence had proved to be wrong on nearly everything. American intelligence services let us down at every point. I had heard in Cabinet discussions the views that had come from our intelligence services. We had enormously underestimated the strength and striking power of Hitler. We had overestimated the staying power of France. We had overestimated the strength of England. We had overestimated the attitude and stamina of Belgium. We had terribly underestimated Japan, at least her immediate striking power. We had terribly underestimated the power of Russia ... The conquest of Russia was expected to be a very short matter. Based on such information as I had, it was a very dark prospect indeed. I was very pessimistic about it. It looked like a very long war and a war that would be terrifically costly in lives because Hitler would have to be dislodged from the position that he held. We had to wage a war of attack. The foolish optimism that had prevailed, such as the invincibility of the American navy and this and that, all went out of Washington very fast. In place of it, a very deep pessimism came in. There was talk about a war of a decade and all that. In the early part of December and the following months, spirits were pretty low here."

Daughter Mary and son Bill flank Irene and new Supreme Court Justice Robert Jackson, June 2041.

During the war, FDR appointed Jackson to the Supreme Court, but Jackson did not always side with the president. He recognized the importance of balance and separation of powers and the overriding authority of the Constitution.

For example, Jackson was in the minority in the Korematsu decision by the Court, arguing against the constitutionality of FDR's decision to imprison Americans of Japanese Ancestry in concentration "internment" camps, an order based on unfounded fear of a racial minority and one FDR would later admit was a mistake.

Robert H. Jackson had close personal ties to the Navy and the extended Roosevelt family. He knew "quite well ... the old gentleman" Josephus Daniels, Secretary of the Navy, who he first met in 1913. He conferred with Secretary of War Henry Stimson, Under Secretary of State Sumner Welles and newspaper editor and Secretary of the Navy Frank Knox.

Jackson at FDRs naval conference with Henry Stimson, Sumner Welles and Frank Knox.

Jackson's daughter, Mary, married a Navy physician. Jackson's son, Bill, earned a law degree and entered the Navy as an ensign. Bill later married Theodore Roosevelt's grandaughter. 

Both TR and FDR served in the position of assistant secretary of the Navy early in their government service. According to Jackson, FDR embraced innovation in the 30s and 40s:

"Roosevelt was not over-awed by military or naval rank and did not feel any sense of inferiority in the presence of a general or an admiral ... The Navy was his special interest, and at Cabinet meetings we sometimes referred to it as his branch of the service. He had the general conception of naval power that was set forth in the late nineteenth century by Admiral Alfred Thayer Mahan, but he was not blind to the significance of the growth of air power. He knew that that opened a new chapter and called for new techniques. He was interested in the most minute developments of new weapons and new strategies, even new tactics. My impression was that Roosevelt had no lack of respect for the training, judgment and advice of his generals and his admirals on the special subjects that were within their technical competence, but that as Commander-in-Chief he was more apt than most presidents to assert his personal authority over the military, naval and air authorities."

Jackson is a fascinating figure in history for his role in the New Deal, as solicitor general and attorney general, as Supreme Court justice and then for a time as chief prosecutor for the United States in the Nuremberg Trials of Nazi leaders.



Jackson, who began a successful career as a country lawyer, never finished law school.

A justice for the people, Jackson opposed indiscriminate wiretapping and invasions of citizens' privacy.

"It seemed to me that wire tapping was a source of real danger if it was not adequately supervised, and that the secret of the proper use of wire tapping was a highly responsible use in a limited number of cases, defined by law, and making wire tapping criminal outside of those purposes or limits," Jackson said.

A Wave-Top Read on Jackson

A wonderful book for young readers makes a good companion read to "That Man." It's Gail Jarrow's "Robert H. Jackson: New Deal Lawyer, Supreme Court Justice, Nuremberg Prosecutor" (Calkins Creek, 2008).

Jarrow explores Jackson's early life in western Pennsylvania and New York as a devoted reader and, in high school, a skilled debater, often benefiting from the wisdom of mentors. In just just a couple of hundred pages we get a wave-top view of his life, culminating in his role at Nuremberg and final years on the Court. She writes:

"Nuremberg had shown Robert Jackson how easily a dictator like Hitler could seize power. The lesson stayed with him when he returned to the Supreme Court. He was determined to protect each person's rights and freedoms from an overpowering government. Yet Jackson didn't want the government to be so weak that it couldn't keep the country secure. Twice in his lifetime, he watched Germany take over Europe. Now Communist Soviet Union was moving to control the free countries in Eastern Europe."

Earlier in his tenure in a First Amendment case he led the majority 6-3 opinion in West Virginia State Board of Education v. Barnette, siding with Jehovah's Witness schoolgirl plaintiffs against the West Virginia Board of Education. The students had been suspended for not putting their hands on their hearts and participating in the Pledge of Allegiance.

Jackson took a different stand in Terminiello v. City of Chicago. The case involved a priest issuing what today would be considered hate speech.

Gail Jarrow

"Catholic priest Arthur Terminiello gave a political speech in a Chicago auditorium in February 1946," Jarrow writes. "During his speech, Terminiello verbally attacked Jews and blacks and called former First Lady Eleanor Roosevelt a Communist." More than a thousand angry people protested outside. Some pounded on the doors and threw rocks. The priest "urged his supporters to use violence against the 'slimy scum' protestors."

In the ensuing riot Terminiello was arrested and fined $100. He took his case through the judicial system to SCOTUS. The Court sided 5-4 against Chicago and for the priest, saying the First Amendment protected his freedom of speech.

"Jackson strongly opposed the majority's decision," Jarrow reports.

She quotes Jackson: "No mob has ever protected any liberty, even its own, but if not put down it always winds up in an orgy of lawlessness which respects no liberties ... The choice is not between order and liberty [of the citizen]. It is between liberty with order and anarchy without either. There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

In the same year as the Terminiello decision was announced, by the way, the United States formed the North Atlantic Treaty Organization. NATO was created by the United States, Canada, and several Western European partner nations after WWII to provide collective security against the Soviet Union.

Jackson, who lived through two world wars and the Cold War, was on the Supreme Court during the Korean War. 

He heard a pivotal case called Youngstown Sheet & Tube Company v. Sawyer. President Truman had ordered the government to take over the steel mills during the war in response to threats of a steelworkers' strike. By 6-3, the Court decided the Constitution did not give the president the authority to take private property without the consent of Congress.

Above: Rehnquist and Jackson; below: Roberts and Rehnquist.

"This ruling," Jarrow said, "brought the three branches of government into balance again and became the basis for many later Court decisions."

In one of his final cases, recovering from a heart attack, Jackson was part of one of the most important cases in U.S. history, Brown v. Board of Education.

The year before he'd heard the reasoned arguments of then-attorney Thurgood Marshall against school segregation. "Jackson made up his mind that the Court should reverse the 1896 Supreme Court ruling Plessy v. Ferguson," Jarrow writes. The decision, issued by Chief Justice Earl Warren, was unanimous.
Jackson did not achieve his dream of becoming chief justice, but his legacy was profound.

"Although Robert Jackson never became chief justice, he is connected to a line of chief justices. His law clerk in 1952-1953 was William Rehnquist, who served as chief from 1986 to 2005. When Rehnquist died in 2005, his former law clerk John Roberts took the position. Robert Jackson dedicated his life to the law, first as a lawyer, then as a judge. He believed that the basis of a government was its laws, not the whims of its leaders. Shortly before his death, he wrote: 'There are only two real choices of government open to a people. It may be governed by law or it may be governed by the will of one or of a group of men. Law, as the expression of the ultimate will and wisdom of the people, has so far proven the safest guardian of liberty yet devised.'"

Jarrow's biography includes a timeline, notes, bibliography, index and resources for more information. Among the resources are oral histories, presidential libraries (Wilson, Hoover, Roosevelt, Truman and Eisenhower) and the Robert H. Jackson Center of Jamestown, New York – www.roberthjackson.org – a site with comprehensive coverage of the Nuremberg trials of Nazi war criminals.

Jackson saw the value of working closely with Allies. He recognized the dangers of totalitarianism and fascism. And he believed in the awe-inspiring power of Constitutional Democracy. He embraced freedom, rejected fear, spoke truth to power and put his faith in critical thinking.

Robert H. Jackson, Associate Justice of the Supreme Court, in 1953: second from the left, in the back row. Also pictured are, from left, in the bottom row: Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; William O. Douglas. Back row: Tom Clark; Jackson; Harold Burton; Sherman Minton.