Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board
Conflict, Compromise, and Constitutional Interpretation
David M. O'Brien
Brown v. Board of Education is widely recognized as one of the US Supreme Court’s most important decisions in the twentieth century. Robert H. Jackson, an associate justice on the case, is generally considered one of the Court’s most gifted writers. Though much has been written about Brown, citing the writing and remarks of the justices who participated in the 1954 decision, comparatively little has been said about Jackson or his unpublished opinion, which is sometimes even mistakenly taken as a dissenting opinion. This book visits Brown v. Board of Education from Jackson’s perspective and, in doing so, offers a reinterpretation of the justice's thinking, and of the Supreme Court's decision making, in a ruling that continues to reverberate through the nation’s politics and public life.
Weaving together judicial biography, legal history, and judicial politics, Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board provides a nuanced look at constitutional interpretation, and the intersection of law and politics, from inside the mind of a justice, within the context of a Court deciding a seminal case. Through an analysis of six drafts of Jackson's unpublished concurring opinion, David M. O’Brien explores the justice’s evolving thoughts on relevant issues at critical moments in the case. His retelling of Brown presents a new view of longstanding arguments confronted by Jackson and the other justices over “original intent” versus a “living Constitution,” the role of the Court, and social change and justice in American political life. The book includes the final draft of Jackson’s unpublished opinion, as well as the Warren Court's opinions in Brown and in Bolling v. Sharpe, for comparison, along with a timeline of developments and decision making leading to the Court’s landmark ruling.
“Provides a wealth of background material on arguably the most significant Supreme Court decision of the 20th century. This short book, which includes a chronology, relevant opinions, and extensive endnotes and bibliography, is an exceptionally useful resource for understanding the Brown decision. Highly recommended.”
“Despite the plethora of books on Brown v. Board, David O’Brien has given us a new and striking look at that decision. Utilizing Justice Jackson’s unpublished opinion, he brilliantly recreates the debate that took place within the Marble Palace, and in doing so, makes us rethink some basic assumptions about the greatest case of the twentieth century. O’Brien once again shows why he is one of the today’s foremost scholars of the Court.”
—Melvin I. Urofsky, author of Dissent and the Supreme Court: Its Role in the Court’s History and the Nations Constitutional Dialogue
“OBrien’s informative new book offers a comprehensive examination and reevaluation of the ongoing controversies over Justice Robert H. Jacksons motivations and actions in Brown v. Board of Education. Building off the six drafts of Jackson’s unpublished opinion in this case, O’Brien usefully provides a new window not only into Jacksons role in this case, but into the Court\’s final ruling as well.”
—Charles Zelden, author of Bush v. Gore: Exposing the Hidden Crisis in American Democracy, Abridged and Updated
“This is a well-crafted work in legal history. O’Brien is at his best in giving us a sense of the human interactions behind the Supreme Court’s decision making. The meticulous research in this volume helps us to better understand the judicial process. O’Brien gives us valuable insight into the conflicts and countercurrents that contributed to the ultimate outcome in the Supreme Court’s most important case, Brown vs. Board of Education. The book should gain a broad audience among scholars in law, history and political science and in undergraduate, graduate and law school classes.”
—Robert J. Cottrol, author of The Long, Lingering Shadow: Slavery, Race and Law in the American HemisphereSee fewer reviews...