The Unfulfilled Tax Legacy of Justice Robert H. Jackson
Kirk J. Stark
University of California, Los Angeles (UCLA) - School of Law
Tax Law Review, Vol. 54, 2000
Among twentieth-century jurists, the career of Justice Robert H. Jackson stands out as one of the most dramatic. Prior to his appointment to the Supreme Court in 1941, Jackson was intimately involved in FDR's court-packing plan and, as Attorney General, wrote the legal opinion that made possible the lend-lease deal with the United Kingdom. During his thirteen-year tenure on the Court, Jackson earned a reputation as a pragmatic liberal with a knack for sharp and clever prose. He authored numerous famous opinions, including classics in Barnette, Youngstown Sheet & Tube, and Korematsu. Today, Jackson is perhaps best known for the extraordinary leave of absence he took from 1945-1946 to serve as the Chief U.S. Prosecutor before the International Military Tribunal at Nuremberg.
What few people know, however, is that Jackson began his career in public service with a stint as one of the government's top tax lawyers. Jackson's first post after arriving in Washington in February 1934 was Chief Counsel of the Bureau of Internal Revenue, a position in which he served for two years. After leaving the Bureau, Jackson became Assistant Attorney General in the Tax Division at the Department of Justice, where he served until early 1937. During these years, Jackson was the chief litigator in several major tax cases, played a significant role in New Deal tax legislation, and was actively involved in the tax bar.
This Article offers a detailed historical/biographical account of the pre-appointment tax career of Justice Robert H. Jackson and its impact on his role in a number of well-known Supreme Court tax cases. Building on original historical materials, the Article reconstructs the key elements of Jackson's outlook on tax adjudication and the Supreme Court's role in it. Jackson's practical experiences as a government tax litigator gave him a unique perspective on the tax litigation process. More than any other Justice, Jackson was intensely interested in the practical consequences of the Court's work on the day-to-day operation of the tax field. Unfortunately, the insights that Robert Jackson could have brought to the Supreme Court's tax work were never fully realized. His portfolio of tax opinions is surprisingly slim, given his experience as a government tax litigator, and Congress overturned his most famous tax opinion, Dobson v. Commissioner, not long after he authored it. In the years following his return from Nuremberg, Jackson wrote very few tax opinions, and those that he did author were mainly dissenting opinions. Nevertheless, Jackson's unique perspective on tax adjudication deserves attention today. His pragmatic approach to tax cases, formed in the crucible of the litigation process, offers important lessons for how we might improve the tax litigation system and the Supreme Court's role in it.
Date posted: February 9, 2001