Joining the Supreme Court, and Thereafter Leaving the Cabinet (1941)

On Friday, July 11, 1941, President Franklin D. Roosevelt met at 2:00 p.m. with his Cabinet.

Following that meeting, the President signed the commission and watched the oath-taking that made one Cabinet member, Attorney General Robert H. Jackson, an associate justice of the Supreme Court of the United States.

White House Stenographer’s Diary

The President’s office was crowded for the occasion. Jackson was accompanied by his wife Irene and their daughter Mary. Others present included Secretary of War Henry L. Stimson; Secretary of Treasury (and Jackson’s 1934 first boss in Washington) Henry Morgenthau, Jr.; presidential aides Harry Hopkins, Tommy Corcoran, and Lowell Mellett; FBI director J. Edgar Hoover; Supreme Court Justices William O. Douglas and James F. Byrnes; and Senator George W. Norris (Indep. Rep.-NE)—each a Jackson friend and admirer. Reporters and photographers also were present, covering the event, which was filled with good feeling.

July 11, 1941: L-R, President Roosevelt, Treasury Secretary Morgenthau, Mary Jackson, Irene Jackson,
Robert H. Jackson (reading his oath), and U.S. Supreme Court Clerk Charles Elmore Cropley (holding the Bible).

President Roosevelt spoke, of course. He said that the Senate had “stood by” the Constitution in confirming Jackson, and that the Court was now “filled.” The President, smiling, said that he wished that he could cut Jackson in half so that he could sit simultaneously on the Court and in the Cabinet. F.D.R. also noted that the day was a double ceremony, because Senator Norris, one of his oldest friends, was there celebrating his 80th birthday alongside 49-year-old Jackson, who the President described as one of his youngest friends.

The President’s “wish I could cut him in half” line was a compliment to Jackson, of course, but it also was a familiar part of F.D.R.’s repertoire. He had said the same thing three days earlier about Justice Byrnes, then serving as a Senator, when signing his commission at his swearing-in as a Supreme Court justice. The President had said more or less the same thing in August 1937 to Senator Hugo L. Black when appointing him to the Supreme Court: “Hugo, I wish you were twins because [Senate Majority Leader Alben] Barkley says he needs you in the Senate; but I think you’ll be more useful on the Court.”

The President’s idea that he would need to cut a Cabinet officer in half for that person also to serve on the Supreme Court was, alas, legally and historically incorrect. Nothing in the U.S. Constitution prohibits such dual service. And it has happened a number of times in U.S. history. In fact, beginning on the afternoon of July 11, 1941—eighty years ago today—Robert H. Jackson was both U.S. Attorney General and a U.S. Supreme Court justice.

That dual status did not last long. It was the product of forgetfulness, not Roosevelt’s or Jackson’s plan.

The next day, Justice Jackson remembered that he needed to resign from the Cabinet and he did so, sending this letter to the President.

Soon thereafter, President Roosevelt formally accepted Justice Jackson’s resignation from the Cabinet.

His reply was unique to their history and relationship. Back in February 1937, when President Roosevelt had unveiled his proposal to “pack” the Supreme Court by creating new seats that younger justices would fill alongside older justices who chose not to retire, the President had explained it as an act of kindness to the aged. He said that the justices were behind in their work, including their review of petitions seeking writs of certiorari—requests for Supreme Court review.

But that explanation was spin—indeed, it was untrue. And then-Assistant Attorney General Jackson had told that privately to the President. Jackson became one of the key advisers who persuaded F.D.R. to shift his explanation for the Court reform plan to the truth. Beginning in March 1937, Roosevelt explained his Court proposal as an effort to move the Court from its incorrect, politicized interpretations of federal and state powers under the Constitution to more restrained, democracy-respecting interpretations.

In summer 1937, the Court-packing proposal got shelved. It became unnecessary after the Supreme Court changed course, upholding the constitutionality of major federal laws (the National Labor Relations Act; the Social Security Act—a Jackson oral argument victory) and state minimum wage laws, and after the older justices began to retire and Roosevelt, then in his second term, finally began to have opportunities to appoint new justices.

In July 1941, that all was shared, treasured, and amusing personal history between the President and new Justice Jackson. When President Roosevelt dictated his July 15, 1941, letter accepting Attorney General Jackson’s resignation from the Cabinet, the President, no doubt smiling, referred back subtly to 1937.