Wack: Admiration of Justice Jackson may steer SCOTUS

With two of our three branches of government deeply impaired, each day it seems more likely we are stumbling into a profound constitutional crisis. The judiciary, specifically the Supreme Court, may be the final battleground where current challenges to our democracy will be resolved. How might that play out?

A constitutional crisis results when a novel problem has no obvious solution in constitutional language or precedent. It can also come about as a result of the intended tension between branches of government, usually resolved with compromise and creative solutions. Examples include the first death of a president in office, leading eventually to the 25th Amendment; the Civil War; and multiple Supreme Court cases resulting from President Franklin D. Roosevelt's initiatives during the Great Depression.


How will the increasingly conservative Supreme Court resolve the looming problems raised by the Mueller investigation, no matter how it plays out? One hint may be the admiration many of the justices have for former Justice Robert H. Jackson. Chief Justice John Roberts, in particular, discussed Jackson frequently in his confirmation hearings.

Jackson is regarded by many of the justices to be one of the best writers in Supreme Court history. His opinions also are noted to be solidly grounded in common sense. Jackson’s writings are often cited in cases regarding the limits of presidential power.

In the Youngstown Steel case, Jackson wrote a concurring opinion containing what is now referred to as the “Justice Jackson Test” regarding the legitimacy of presidential authority in three categories: when in accord with Congress, in defiance of Congress and when the situation is ambiguous. Supreme Court justices often refer to the Jackson test when discussing hypotheticals about the constitutionality of presidential actions. This could be very important in the near future, especially when it comes to the legality of presidential pardons.

Conservatives admire Jackson, a liberal justice who assisted FDR in implementing the hated New Deal, because of his common-sense approach to limiting government power as it is articulated in the Youngstown case.

Another case that may influence coming decisions is the Dennis case, where Jackson wrote a concurring opinion in support of the denial of First Amendment protections for members of the Communist Party who were convicted under provisions of the Smith Act, anti-espionage legislation from 1940. Though many aspects of the Smith Act have since been found by several decisions to be unconstitutional, Jackson’s reasoning about redefining the “clear and present danger” standard in light of modern developments may have direct bearing on current Russian efforts to subvert American democracy. Jackson argued that earlier courts and the founders could not have anticipated modern media, espionage and conflict with totalitarian states.

Last, the case of Terminiello v. Chicago is another example of Jackson’s common-sense approach explaining the role of the court relative to the Constitution and the rest of the government. It was a free speech case about a priest who incited crowds to riot and sought First Amendment protection. Once again, Jackson’s common sense shines through: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is 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.”

With all the loose talk recently from White House allies of coups, civil war and purging the government, the time for the SCOTUS to step up and save American democracy may not be too far off. Let’s hope they are up to the task. Just up the road in Gettysburg, we have a sobering reminder of what past failure looks like.

Robert Wack writes from Westminster, where he serves on the Common Council. He can be reached at