Robert H. Jackson
|Robert H. Jackson|
Robert H. Jackson, c. 1945
|Associate Justice of the United States Supreme Court|
July 11, 1941 – October 9, 1954
|Nominated by||Franklin D. Roosevelt|
|Preceded by||Harlan F. Stone|
|Succeeded by||John Marshall Harlan II|
|57th United States Attorney General|
January 18, 1940 – August 25, 1941
|President||Franklin Delano Roosevelt|
|Preceded by||Frank Murphy|
|Succeeded by||Francis Biddle|
|24th United States Solicitor General|
March 1938 – January 18, 1940
|President||Franklin Delano Roosevelt|
|Preceded by||Stanley Reed|
|Succeeded by||Francis Biddle|
Robert Houghwout Jackson
February 13, 1892
Spring Creek Township, Warren County, Pennsylvania, U.S.
October 9, 1954
Washington, D.C., USA
Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was United States Solicitor General (1938-1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He is the only person in United States history to have held all three of those offices. He was also the chief United States prosecutor at the Nuremberg Trials. A "county-seat lawyer", he remains the last Supreme Court justice appointed who did not graduate from any law school (though Justice Stanley Reed who served from 1938 to 1957 was the last such justice to serve on the court), although he did attend Albany Law School in Albany, New York for one year. He is remembered for his famous advice that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances" and for his aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final." Many lawyers revere Justice Jackson as one of the best writers on the court, and one of the most committed to due process protections from overreaching federal agencies.
- Early life 1
- U.S. Federal appointments and politics, 1934–1938 2
- U.S. Solicitor General, 1938–1940 3
- U.S. Attorney General, 1940–1941 4
U.S. Supreme Court, 1941–1954 5
- Feud with Hugo Black 5.1
Jackson and Dennis v. United States 5.2
- The "clear and present danger" test 5.2.1
Dennis v. United States 5.2.2
- Background 220.127.116.11
- Jackson's concurrence 18.104.22.168
- Conclusion 22.214.171.124
Justice Jackson and Korematsu v. United States 5.3
- Background 5.3.1
- Jackson's Dissent 5.3.2
- Conclusion 5.3.3
- Justice Jackson and Brown v. Board of Education 5.4
- Justice Jackson and procedural due process 5.5
- International Military Tribunal, 1945–1946 6
- Death and legacy 7
- Portrayal in popular culture 8
- See also 9
- References 10
- Further reading 11
- External links 12
Born on a family farm in Spring Creek Township, Warren County, Pennsylvania and raised in Frewsburg, New York, Jackson graduated from Frewsburg High School in 1909 and spent the next year as a post-graduate student attending Jamestown High School in Jamestown, New York where he came under the tutelage of teachers such as Mary Willard and Milton Fletcher, two teachers that inspired his love of writing and literature. Jackson did not attend college.
At age 18, he went to work as an apprentice in a two-lawyer Jamestown law office with his uncle, Frank Mott who was a lawyer in Jamestown. Frank Mott introduced him to Franklin Delano Roosevelt when FDR was a young New York Senator. FDR served as a reference for Jackson in the New York Democratic party.
Robert H. Jackson then attended Albany Law School, in Albany, New York during 1911–12. Although Jackson completed the second year of the School's two-year program, it denied him a law degree because he was under age twenty-one.
In 1916, he married Irene Alice Gerhardt in Albany. In 1917, Jackson was recruited to practice law in Buffalo, New York. He worked for Penney, Killeen & Nye, a leading Buffalo law firm located in the Ellicott Square building, primarily defending the International Railway Company in trials and appeals. In Buffalo, the Jacksons lived at 49 Johnson Park (the Lyndhaven apartment building). In late 1918, Jackson was recruited back to Jamestown to serve as the city's corporation counsel.
Over the next 15 years, he built a very successful private law practice, becoming a leading lawyer in New York State and, through practice and bar association activities, a prominent young lawyer nationally. In 1930, Jackson was elected to membership in the American Law Institute. In 1933, Jackson was elected chairman of the American Bar Association's Conference of Bar Association Delegates (a predecessor to today's ABA House of Delegates).
U.S. Federal appointments and politics, 1934–1938
Jackson was appointed to federal office by President Franklin Delano Roosevelt in 1934. Jackson served initially as general counsel of the U.S. Treasury Department's Bureau of Internal Revenue (today's Internal Revenue Service). He was in charge of 300 lawyers who tried cases before the Board of Tax Appeals. In 1936, Jackson became Assistant Attorney General heading the Tax Division of the Department of Justice, and in 1937 he became Assistant Attorney General heading the Antitrust Division.
U.S. Solicitor General, 1938–1940
In 1938, Jackson became United States Solicitor General, serving until January 1940 as the government's chief advocate before the Supreme Court.
Jackson was a supporter of the  He participated in the 1934 prosecution of Samuel Insull, the 1935 income tax case against Andrew Mellon, and the 1937 anti-trust case against Alcoa, in which the Mellon family held an important interest.
Louis Brandeis, Associate Justice of the Supreme Court once remarked that Jackson should be "Solicitor General for life."
President Roosevelt was so impressed with Jackson's ascension in the government that he regarded him as a potential heir, and in 1937 considered having him run for Governor of New York. Jackson was a fellow 
U.S. Attorney General, 1940–1941
Jackson was then appointed to be the 57th Attorney General of the United States by Roosevelt on January 4, 1940, replacing Frank Murphy. As Attorney General, Jackson supported a bill introduced by Sam Hobbs that would have legalized wiretapping by the Federal Bureau of Investigation (FBI), or any other government agency, if it was suspected that a felony was occurring. The bill was opposed by Federal Communications Commission (FCC) chairman James Lawrence Fly, and did not pass.
While Jackson was Attorney General, he helped President Roosevelt organize the Lend-Lease agreement which allowed the United States’ to supply materials to help with the war effort to the other allied forces before formally entering World War II.
U.S. Supreme Court, 1941–1954
When Harlan Fiske Stone replaced the retiring Charles Evans Hughes as Chief Justice in 1941, Roosevelt appointed Jackson to the resulting vacant Associate's seat. Robert H. Jackson was the 82nd associate justice of the Supreme Court where he was known for his eloquent writing style and championing of individual liberties.
In 1943, Jackson wrote the majority opinion in West Virginia State Board of Education v. Barnette, which overturned a public school regulation making it mandatory to salute the flag and imposing penalties of expulsion and prosecution upon students who failed to comply. Jackson's stirring language in Barnette concerning individual rights is widely quoted. Jackson's concurring opinion in 1952's Youngstown Sheet & Tube Co. v. Sawyer (forbidding President Harry Truman's seizure of steel mills during the Korean War to avert a strike), where Jackson formulated a three-tier test for evaluating claims of presidential power, remains one of the most widely cited opinions in Supreme Court history (it was quoted repeatedly by Supreme Court nominees John Roberts and Samuel Alito during their confirmation hearings).
Feud with Hugo Black
Justices Jackson and Hugo Black had profound professional and personal disagreements dating back to October 1941, the first term in which they served together on the Supreme Court. According to Dennis Hutchinson, editor of The Supreme Court Review, Jackson objected to Black’s practice of importing his personal preferences into his jurisprudence. Hutchinson quotes Jackson as having remarked, “With few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties.” While Hutchinson points out that Jackson objected to Black's style of jurisprudence in such cases as Minersville v. Gobitis (1940) and United States v. Bethlehem Steel (1942), Black’s involvement in the Jewell Ridge case struck Jackson as especially injudicious.
In Jewell Ridge Coal Corp. v. Mine Workers (1945), the Supreme Court faced the issue of whether to grant the coal company’s petition for rehearing on the grounds that the victorious miners were, in a previous matter, represented by Crampton P. Harris, who was Justice Black’s former law partner and personal lawyer. Despite this apparent conflict of interest, Black lobbied the Court for a per curiam denial of the petition. Justice Jackson objected, with the result that Jackson filed a concurrence disassociating himself from the ruling and, by implication, criticizing Black for not addressing the conflict of interest. Jackson also strongly objected to Black’s judicial conduct in Jewell Ridge for another reason. As Jackson later alleged, while Justice Murphy was preparing his opinion, Black urged that the court hand down its decision without waiting for the opinion and dissent. In Jackson’s eyes, the "only apparent reason behind this proposal was to announce the decision in time to influence the contract negotiations during the coal strike" between the coal company and the miners, which were taking place at the time.
Jackson probably regarded Black’s conduct as unbecoming of a Supreme Court Justice in another related matter. On April 3, 1945, The Southern Conference for Human Welfare held a dinner, at which it honored Justice Black as the 1945 recipient of the Thomas Jefferson Award. Fred M. Vinson, interestingly, spoke at the dinner. While Jackson declined an invitation to the event, citing a conflict arising out of the fact that a number of leading sponsors of the dinner were then litigants before the Supreme Court, Black attended the dinner and received his award. Crampton Harris, counsel in two pending cases, Jewell Ridge and CIO v. McAdory (1945), was one of the sponsors.
Jackson would later take these grievances public in two public cables from Nuremberg. Jackson had informally been promised the Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and FDR was no longer alive. President Harry S. Truman was faced with two factions, one recommending Jackson for the seat, the other advocating Hugo Black. In an attempt to avoid controversy, Truman appointed Fred M. Vinson. Jackson blamed machinations by Black for his being passed over for the seat and publicly exposed some of Black's controversial behavior and feuding within the Court. The controversy was heavily covered in the press and cast the New Deal Court in a negative light and had the effect of tarnishing Jackson's reputation in the years that followed.
On June 8, 1946, Jackson sent a cable to President Truman. Jackson’s cable to Truman began with an insincere offer of congratulations to the President for his appointment of Vinson. But, the cable then quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, that Truman had appointed Fred Vinson in part to avert a resignation on the part of Justice Black. Rumors had been circulating in Washington that Black would resign in the event that Truman chose Jackson as Chief Justice Stone’s successor. "I would be loathe to believe that you would concede to any man a veto over court appointments." Jackson closed his cable by stating that he could not continue his service as an Associate Justice under Vinson if an associate "had something on [him]", which would disqualify him from serving, or if he, Truman, regarded Jackson’s opinion in the Jewell Ridge case as a "gratuitous insult" to Justice Black.
After receiving a response from Truman in which he denied having given consideration to, or having even heard of, the rumor of Black’s threatened resignation, Jackson rashly fired off a second cable to Congress on June 10. This cable stated Jackson's reasons for his belief that Justice Black faced a conflict of interest in Jewell Ridge, from which he wrongfully, at least, in Jackson's eyes, did not recuse himself, and ended with Jackson's threat that if such a practice "is ever repeated while I am on the bench I will make my Jewell Ridge opinion look like a letter of recommendation by comparison."
Jackson and Dennis v. United States
The "clear and present danger" test
In order to understand Jackson’s concurrence in Dennis v. United States, a basic understanding of the origin of the clear and present danger test is helpful.
In 1919, the Supreme Court decided Schenck v. United States. In Schenck, the petitioners, members of the Socialist Party, were convicted of violating the Espionage Act of 1917 for printing and distributing circulars asserting that American citizens had a right to oppose the draft during World War I because, among other things, it violated the United States Constitution. The Schenck decision promulgated the clear and present danger test which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed. Justice Holmes, writing for a unanimous court, affirmed the convictions of the lower court positing:
“We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
Dennis v. United States
In 1951, the Supreme Court decided
The Stone Court
Chief Justice: Harlan Fiske Stone (1941–1946)
The Vinson Court
Chief Justice: Frederick Moore Vinson (1946–1953)
The Warren Court
Chief Justice: Earl Warren (1953–1969)
Secretary of State
Secretary of the Treasury
Secretary of War
Secretary of the Navy
Secretary of the Interior
Secretary of Agriculture
Secretary of Commerce
Secretary of Labor
Stanley Forman Reed
U.S. Solicitor General
Served under: Franklin D. Roosevelt
U.S. Attorney General
Served under: Franklin D. Roosevelt
Harlan Fiske Stone
Associate Justice of the Supreme Court of the United States
July 11, 1941 – October 9, 1954
John Marshall Harlan II
Robert H. Jackson has been portrayed by the following actors in film, television and theater productions;
Portrayal in popular culture
There is a statute dedicated to Robert H. Jackson outside Love Elementary School in Jamestown, New York as well as the Robert H. Jackson field at the Jamestown airport. The United States District Court for the Western District of New York main courthouse, located in Buffalo, is dedicated to Justice Jackson, as the Robert H. Jackson United States Courthouse.
The Robert H Jackson Center, located in Robert H. Jackson's hometown of Jamestown New York offers guided tours to visitors as well as exhibits on Jackson's life and collections of his writings and Nuremberg photos. An extensive collection of Jackson's personal and judicial papers is archived at the Manuscript Division of the Library of Congress and open for research. Smaller collections are available at several other repositories.
Jackson died in Washington, D.C., at the age of 62, of a myocardial infarct. After funeral services in Washington's National Cathedral, and later in Jamestown's St. Luke's Church, he was interred near his boyhood home in Frewsburg, New York. All 8 of the other Supreme Court Justices traveled together to Jamestown, New York to attend his funeral service and this was the last time the Supreme Court all traveled together for security purposes.
Death and legacy
However, some believe his cross-examination skills were generally considered weak, and it was British prosecutor David Maxwell-Fyfe who got the better of Göring in cross-examination rather than Jackson, who was rebuked by the Tribunal for losing his temper and being repeatedly baited by Göring during the proceedings.
|“||The trial began with the grand, devastating opening address by the chief American prosecutor, Justice Robert H. Jackson. But I took comfort from one sentence in it which accused the defendants of guilt for the regime's crimes, but not the German people.||”|
In 1945, President Truman appointed Jackson, who took a leave of absence from the Supreme Court, to serve as U.S. chief of counsel for the prosecution of Nazi war criminals. He helped draft the London Charter of the International Military Tribunal, which created the legal basis for the Nuremberg Trials. He then served in Nuremberg, Germany, as United States chief prosecutor at the international Nuremberg trial. Jackson pursued his prosecutorial role with a great deal of vigor (for instance, referring in arguments to Hermann Göring as being "half militarist, half gangster"). His opening and closing arguments before the Nuremberg court are widely considered among the best speeches of the 20th century. In the words of defendant Albert Speer:
International Military Tribunal, 1945–1946
If it be conceded that in some way [that the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedure matters not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.
Justice Jackson was one of the great defenders (along with Justice Frankfurter) of procedural due process, for the rule of law that protects members of the public from overreaching by government agencies. One of his hymns to due process is often quoted:
Justice Jackson and procedural due process
Justice Jackson was in the hospital from March 30 to May 17, 1954. It is reported that Chief Justice Warren visited Jackson in the hospital several times and discussed both Jackson’s draft opinion and Warren’s drafts. One suggestion that Warren took from Jackson was adding “Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world.” This quote is tied to the arguments in Part 4 of Jackson’s draft opinion. On May 17, 1954, Jackson went to the Court from the hospital so he could be there the day the Brown decision was handed down. When the Brown decision was handed down, a full court was present to emphasize the unanimity of the decision. Robert H. Jackson died on October 9, 1954, and so there was not enough time between Brown and the death of Jackson to fully explore his views on desegregation.
Finally, in Part 4 of the draft memorandum “CHANGED CONDITIONS” Jackson began by stating that prior to Brown, segregation was legal. According to Jackson, the premise for overruling Plessy was the now erroneous "factual assumption" that "there were differences between the Negro and the white races, viewed as a whole." The draft asserted that the "spectacular" progress of African-Americans, under adverse circumstances, "enabled [them] to outgrow the system and to overcome the presumptions on which it was based." Jackson emphasized that the changed conditions along with the importance of a public education required the court to strike down separate but equal in public education. While Jackson could not justify the decision in Brown in law, he did so on the basis of a political and social imperative. It is unknown if Jackson ever intended to publish this concurrence.
In Part 3 of the draft memorandum titled “ENFORCEMENT POWER LIMITS” describes enforcement by Congress of the Fourteenth Amendment. Jackson addressed the possibility of leaving enforcement to Congress, particularly because the “courts have no power to enforce general declarations of law." Jackson noted that while segregation was already fading in some states, it would be difficult to overcome in those states where segregation was firmly established. While Jackson recognized the difficulties in the Supreme Court enforcing its judgment, he did not want the task to be left to the lower courts as suggested by the Government. Jackson concluded that the court must act because “our representative system has failed” and even though this “premise is not a sound basis for judicial action."
In Part 2 of the draft memorandum, Justice Jackson described the legal framework for forbidding segregation in “DOES EXISTING LAW CONDEMN SEGREGATION?”. Jackson notes the difficulty for the court that was "supposed not to make new law but only to declare existing law," to overturn a decision of such longevity as Plessy. Looking at the doctrine of original intent with regard to the Fourteenth Amendment, Justice Jackson found no evidence that segregation was prohibited, particularly since states that ratified the Fourteenth Amendment had segregated schools at the time. Jackson concluded, "I simply cannot find in the conventional material of constitutional interpretation any justification for saying" that segregated schools violated the Fourteenth Amendment.
The ultimate views of Justice Jackson about Brown can be found in his 1954 unpublished draft concurrence. The “Memorandum by Mr. Justice Jackson, March 15, 1954”, is available with Jackson’s papers in the Library of Congress but did not become publicly available until after Rehnquist’s 1986 hearing for Chief Justice of the United States. Jackson’s draft concurrence in Brown, divided into four parts, shows how he struggled with how to write an effective opinion to strike down segregation. In Part 1 of Jackson’s draft concurrence in Brown, he wrote that he went to school where “Negro pupils were very few” and that he was “predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had.” Despite his own opinions regarding desegregation, Jackson acknowledged the inability of the Court to "eradicate" the "fears, prides and prejudices" that made segregation an important social practice in the South. Jackson thus concluded that the Northerners on the court should be sensitive to the conditions that brought segregation to the South.
One of Jackson's law clerks during 1952–53, William H. Rehnquist, was appointed to the Supreme Court in 1971 and became Chief Justice in 1986. In December 1971, after Rehnquist's nomination had been approved by the Senate Judiciary Committee and was pending before the full Senate, a 1952 memorandum came to light that he had written as Jackson's law clerk in connection with the landmark case, Brown v. Board of Education that argued in favor of affirming the separate-but-equal doctrine of Plessy v. Ferguson. Rehnquist wrote a brief letter attributing the views to Jackson and was confirmed. In his 1986 hearing he was questioned about the matter. His explanation of the memorandum was disputed in both 1971 and 1986 by Jackson's former secretary, and scholars have questioned its plausibility. However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind.
Justice Jackson and Brown v. Board of Education
“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Robert H. Jackson’s prediction in Korematsu v. United States has been cited as one of the first instances in the expansion of executive power that many believe plague our governmental system.
"“But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Robert H. Jackson was not concerned in evaluating the validity of General DeWitt’s claim that the internment of Japanese citizens on the West coast was necessary for national security purposes but whether this would set a precedent of racial discrimination in a time of war that would be used to strip individual liberties.
Jackson called the military order a “danger to liberty” and feared for the consequences that it would have as precedent when it “becomes the doctrine of the Constitution.”
“But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it.”
The Supreme Court decided that the President and Congress did not stretch their war powers too far by choosing national security over an individual’s rights in a time of war. Justice Hugo Black wrote the majority opinion for this case and one can predict that Justice Jackson might have an opposing opinion than that of Justice Black. Jackson wrote a dissenting opinion in which he warned of the danger that this great allowance of executive power through the War Department’s ability to deprive individual rights in favor of national security in time of war.
Fred Korematsu, United States citizen, born on American soil, believed that this was an unconstitutional infringement on an individual’s civil liberty. The question that came before the Supreme Court of the United States was whether the Executive and Legislative branches went beyond their war powers by depriving citizens of rights with no criminal basis.
Following the Japanese attack on Pearl Harbor on December 7, 1941, there was great suspicion surrounding Japanese Americans, particularly those residing on the West Coast of the United States. Franklin Delano Roosevelt issued Executive Order 9066 on February 19, 1942, giving the War Department permission to declare some zones “military zones” in which they could prohibit certain people from accessing prescribed areas. With this executive order, the War Department was able to declare that all United States citizens of Japanese ancestry were prohibited from areas in California that were deemed unsafe for Japanese American habitation for national security purposes and forced them into internment camps.
Justice Jackson and Korematsu v. United States
“[T]he manufactured image of the domestic Communist, cultivated and propagated by [J. Edgar] Hoover, the Catholic Church, the American Legion, and political opportunists, made of Communists something less than full humans, full citizens, fully rights-endowed. Even sophisticated jurists like ... Robert Jackson were captives of that image, anesthetizing [his] sensitivity to deprivation of rights. In Dennis and other Communist cases between 1950 and 1956, the Supreme Court overcame the problem of facts not supporting the results it was determined to reach by accepting a generic ‘proof’ of Communism’s seditious nature. Disregarding all evidence of both the Party’s and individual members’ renunciation of violence, the Court substituted literary evidence from outdated classics of Marxism-Leninism, most written by Europeans of an earlier era, and refused to consider whether the living people before them actually subscribed to those doctrines...”
Jackson’s hardened stance on the First Amendment in Dennis may be attributed to strong anti-Communist sentiment which had a grip on Americans during the time of the decision. In William Wiecek’s article discussing the history of anticommunism in the United States, he asserts that:
In the end the Court applied its own version of the clear and present danger test in Dennis essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine. Jackson, however, as one commentator put it, expressed in Dennis (at least with regards to Communists) that “when used as part of a conspiracy to act illegally, speech loses its First Amendment protection.”
“The authors of the clear and present danger test never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.”
Jackson concludes his First Amendment analysis in Dennis by asserting that:
On the problems with applying the Test in Dennis, Jackson deems significant that the Test was authored “before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties.” Jackson believed that the application of the test should be limited to cases bearing strong enough likeness to those for which it was originally crafted—i.e. “criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of Jehovah Witness school children to salute our flag ...” Expressing strong concern that the expansive construction the Court had recently given the Test in Bridges v. State of California, Jackson asserted that the Test provided communists with “unprecedented immunities” while “Government is captive in a judge-made verbal trap.” Jackson goes on to describe the application of the Test to communists when determining the constitutionality of the Smith Act facially or as applied as one of “apprais[ing] imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians.”
On the nature of communists, Jackson characterizes them as an extraordinarily dedicated and highly selective group disciplined and indoctrinated by communist policy. The goal of Party members is to secretly infiltrate key positions of government, industry, and unions and to leverage their power once in such positions. Jackson goes on to say that although “Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder ...” they “advocate force only when prudent” which “may never be necessary, because infiltration and deception may be enough.”
 On the effect communists historically had on foreign countries, Jackson analyzed their effect on
In Dennis, Jackson concludes that the clear and present danger test (the “Test”) should not be applied. To this end, Jackson analyzed: the effect communism had outside the United States; the nature of communists; and the problems with applying the Test. Jackson’s analysis can be summarized as follows:
 The issue before the Supreme Court was “[w]hether either §2 or §3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights...”