Justice Jackson's Draft Opinions in the Steel Seizure Cases

Abstract:     
Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom.

Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.

Number of Pages in PDF File: 22

Keywords: Jackson, Youngstown, Steel Seizure, Executive, Unitary, Foreign, War Power

JEL Classification: K10, K30, K40

working papers series